Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment

Judgment:

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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Arun Tandon, J.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.

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			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2005All181; 2005(1)AWC811',
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			'respondent' => 'State of U.P. and ors.',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the Constitution of India and therefore the relief prayed for by the petitioners cannot be granted.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR2005All181; 2005(1)AWC811',
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			'respondent' => 'State of U.P. and ors.',
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		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
$content = array(
	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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9. I have heard learned counsel for the parties and have gone through the records.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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$url = 'https://sooperkanoon.com/case/amp/489998/vijay-prakash-vs-state-u-p-ors'
$ctype = ' High Court'
$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
$content = array(
	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the Constitution of India are quoted below :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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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 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.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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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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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the Constitution of India. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
	)
)
$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the Constitution of India inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the Constitution of India. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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(9) Parahiya (in the District of Sonbhadra).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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(10) Baiga (in the District of Sonbhadra).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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(12) Agariya (in the District of Sonbhadra).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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(13) Patari (in the District of Sonbhadra).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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(14) Chero (in the Districts of Sonbhadra and Varanasi).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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(15) Bhuiya, Bhuinya (in the District of Sonbhadra).

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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'3. The description 'Backward Classes' is commonly applied to the following sections of the population :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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(1) Scheduled Caste.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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(2) De-notified. Tribes and Vagrant Tribes.................'

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$url = 'https://sooperkanoon.com/case/amp/489998/vijay-prakash-vs-state-u-p-ors'
$ctype = ' High Court'
$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
$content = array(
	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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'No. 148B-/XXVI-700(5)/1959

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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Sri Iftikhar Hussain

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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Up Sachiv

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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Uttar Pradesh

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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The Nideshak

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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Harijan Kalyan, U. P.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the Constitution of India. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'AIR2005All181; 2005(1)AWC811',
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		'respondent' => 'State of U.P. and ors.',
		'sub' => 'Constitution',
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$caseref = 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.<br>'
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
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26. All the writ petitions are devoid of merits and are accordingly dismissed.

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	'title_for_layout' => 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '489998',
			'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
			'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
			'appellant' => 'Vijay Prakash',
			'authreffered' => '',
			'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
			'caseanalysis' => null,
			'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
			'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
			'counselplain' => 'L.D. Rajbhar, Adv.',
			'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2004-12-23',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Arun Tandon, J.',
			'judgement' => '<p style="text-align: justify;">Arun Tandon, J.</p><p style="text-align: justify;">1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p style="text-align: justify;">2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p style="text-align: justify;">3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p style="text-align: justify;">4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p style="text-align: justify;">5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p style="text-align: justify;">6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p style="text-align: justify;">7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p style="text-align: justify;">'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p style="text-align: justify;">The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p style="text-align: justify;">The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p style="text-align: justify;">8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p style="text-align: justify;">9. I have heard learned counsel for the parties and have gone through the records.</p><p style="text-align: justify;">10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p style="text-align: justify;">'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p style="text-align: justify;">11. Reference may be had to the provisions of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> are quoted below :</p><p style="text-align: justify;">'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p style="text-align: justify;">(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 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.</p><p style="text-align: justify;">342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p style="text-align: justify;">13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p style="text-align: justify;">14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p style="text-align: justify;">15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p style="text-align: justify;">16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p style="text-align: justify;">17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p style="text-align: justify;">18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p style="text-align: justify;">'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p style="text-align: justify;">(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p style="text-align: justify;">(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p style="text-align: justify;">(8) Saharya (in the District of Lalitpur).</p><p style="text-align: justify;">(9) Parahiya (in the District of Sonbhadra).</p><p style="text-align: justify;">(10) Baiga (in the District of Sonbhadra).</p><p style="text-align: justify;">(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p style="text-align: justify;">(12) Agariya (in the District of Sonbhadra).</p><p style="text-align: justify;">(13) Patari (in the District of Sonbhadra).</p><p style="text-align: justify;">(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p style="text-align: justify;">(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p style="text-align: justify;">19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p style="text-align: justify;">20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p style="text-align: justify;">'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p style="text-align: justify;"> (1) Scheduled Caste.</p><p style="text-align: justify;">(2) De-notified. Tribes and Vagrant Tribes.................'</p><p style="text-align: justify;">4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p style="text-align: justify;">6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p style="text-align: justify;">21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p style="text-align: justify;">'No. 148B-/XXVI-700(5)/1959</p><p style="text-align: justify;">From :</p><p style="text-align: justify;">Sri Iftikhar Hussain</p><p style="text-align: justify;">Up Sachiv</p><p style="text-align: justify;">Uttar Pradesh</p><p style="text-align: justify;">Shashan</p><p style="text-align: justify;">To,</p><p style="text-align: justify;">The Nideshak</p><p style="text-align: justify;">Harijan Kalyan, U. P. </p><p style="text-align: justify;">Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p style="text-align: justify;">Sir,</p><p style="text-align: justify;">I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p style="text-align: justify;">1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p style="text-align: justify;">22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p style="text-align: justify;">23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p style="text-align: justify;">24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p style="text-align: justify;">25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p style="text-align: justify;">26. All the writ petitions are devoid of merits and are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR2005All181; 2005(1)AWC811',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'vijay-prakash-vs-state-u-p-ors',
	'args' => array(
		(int) 0 => '489998',
		(int) 1 => 'vijay-prakash-vs-state-u-p-ors'
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$title_for_layout = 'Vijay Prakash Vs State of U P and ors - Citation 489998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '489998',
		'acts' => 'Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 141, 341, 341(1), 342 and 342(2)',
		'appealno' => 'C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions',
		'appellant' => 'Vijay Prakash',
		'authreffered' => '',
		'casename' => 'Vijay Prakash Vs. State of U.P. and ors.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. ' 11. Reference may be had to the provisions of Article 341 and Article 342 of the Constitution of India, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe.',
		'caseanalysis' => null,
		'casesref' => 'E.V. Chinnaiah v. State of Andhra Pradesh and Ors.;',
		'citingcases' => 'Dated : Lucknow,                March 26, 1962;1. Masahar     5. Gujar           9. Karwal           13. Karwal           17. Bhar
2. Nat         6. Kanjar          10. Bhantu          14. Aheria           18. Chamar
                                 (Bahelia)
3. Pasi        7. Khatik          11. Habura          15. Badak            19. Dom
4. Dusadh      8. Barwar          12. Sansia          16. Beria',
		'counselplain' => 'L.D. Rajbhar, Adv.',
		'counseldef' => 'Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2004-12-23',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Arun Tandon, J.',
		'judgement' => '<p>Arun Tandon, J.</p><p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.</p><p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.</p><p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.</p><p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.</p><p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.</p><p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.</p><p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :</p><p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................</p><p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.</p><p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'</p><p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.</p><p>9. I have heard learned counsel for the parties and have gone through the records.</p><p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :</p><p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'</p><p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :</p><p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).</p><p>(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 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.</p><p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).</p><p>(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.'</p><p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.</p><p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.</p><p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.</p><p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.</p><p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.</p><p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.</p><p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :</p><p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :</p><p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).</p><p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).</p><p>(8) Saharya (in the District of Lalitpur).</p><p>(9) Parahiya (in the District of Sonbhadra).</p><p>(10) Baiga (in the District of Sonbhadra).</p><p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).</p><p>(12) Agariya (in the District of Sonbhadra).</p><p>(13) Patari (in the District of Sonbhadra).</p><p>(14) Chero (in the Districts of Sonbhadra and Varanasi).</p><p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). </p><p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.</p><p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :</p><p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :</p><p> (1) Scheduled Caste.</p><p>(2) De-notified. Tribes and Vagrant Tribes.................'</p><p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............</p><p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '</p><p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :</p><p>'No. 148B-/XXVI-700(5)/1959</p><p>From :</p><p>Sri Iftikhar Hussain</p><p>Up Sachiv</p><p>Uttar Pradesh</p><p>Shashan</p><p>To,</p><p>The Nideshak</p><p>Harijan Kalyan, U. P. </p><p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.</p><p>Sir,</p><p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :</p><p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'</p><p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.</p><p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.</p><p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.</p><p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.</p><p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p></p><p>',
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	(int) 0 => '<p>Arun Tandon, J.',
	(int) 1 => '<p>1. Heard Sri L. D. Rajbhar, learned counsel for the petitioners in all the writ petitions, Sri Mahendra Pratap Singh, learned counsel for the Director, State Education, Research and Training Board, U. P., Lucknow and Sri Piyush Shukla, learned standing counsel for the State-respondents.',
	(int) 2 => '<p>2. These six writ petitions have been filed by the persons, who claim themselves to be the members of the Denotified tribe (Vimukt Jati), namely, Bhar and Rajbhar, residents of District Azamgarh in the State of Uttar Pradesh. On the basis of their being members of the denotified tribes, the petitioners claim that they are entitled to be treated as members of Scheduled Castes/Scheduled Tribes and are entitled to the benefits of reservation provided for in respect of the Scheduled Castes/Scheduled Tribes candidates. Accordingly the petitioners have prayed for quashing of the declaration under the Government order dated 20th February, 2004 (as contained in para 4 (a) of the guidelines issued for admission to the B.T.C. course qua the entrance examination of the year 2004, a copy whereof has been enclosed as Annexure-3 to the first writ petition). Under Clause 4 (a) (Condition of admission), it has been provided that the candidates belonging to the Bhar Castes shall be treated to be members of Backward Class category. It is also prayed that the respondents' be directed to provide benefit of reservation to the members of Bhar Castes treating them to be the members of Scheduled Castes/Scheduled Tribes.',
	(int) 3 => '<p>3. Counter-affidavit has been filed in the Writ Petition No. 28509 of 2004 on behalf of the respondents and it has been stated that, reservation has been provided for in favour of the members of the Bhar Castes treating them to be the members of Other Backward Class Category strictly in accordance with the provisions of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002. Bhar Caste has not been included in any list of Scheduled Caste/Scheduled Tribe in accordance with the provisions of the <a>Constitution of India</a> and therefore the relief prayed for by the petitioners cannot be granted.',
	(int) 4 => '<p>4. The dispute between the parties as such is confined to the issue as to whether the Bhar Caste, which is one of the Denotified Tribe is to be treated as the Scheduled Caste/Scheduled Tribe for the purposes of providing reservation for admission in B.T.C. Course or else they are the members of the Backward Class Category and therefore, the State Government is justified in providing the benefit of reservation under the said category alone for the purposes of admission to the B.T.C. Course.',
	(int) 5 => '<p>5. In order to appreciate the aforesaid controversy it would be necessary to refer to the historical background of the Bhar Caste community. During the year 1871 nearly 150 tribes of India were notified by the British Government of India as Criminal tribes vide Criminal Tribes Act No. 1911. The aforesaid provision was made for the regulation of the aforesaid criminal tribes. Subsequently another act known as Criminal Tribes Act was enforced by the British Government, which was made applicable through the British India which regulated the aforesaid criminal tribe.',
	(int) 6 => '<p>6. After the independence the said Acts have been repealed by various Acts enforced by the State of Uttar Pradesh, West Bengal, Assam, Orissa, etc. from time to time. However, the tribes, which were earlier included in the Criminal Tribes Act No. 1911 were declared and renamed as Vimukt Jati/ Denotified Tribe (Bhar Jati) is one of the such tribe, which was notified in the State of Uttar Pradesh as denotified tribe.',
	(int) 7 => '<p>7. The State of Uttar Pradesh issued Government orders dated 12th May, 1961 and dated 26th March, 1962 whereby certain benefits to the members belonging to the aforesaid denotified communities were provided for. On the basis of the aforesaid Government orders dated 12th May, 1961 and 26th March, 1962, the petitioners (members of the Bhar community) claim that they have been treated as Scheduled Caste/ Scheduled Tribe and have been provided benefits of reservation accordingly. It is further alleged that the aforesaid notifications were subject matter of considerations before this Court in various writ petitions, namely Civil Misc. Writ Petition No. 9788 of 2004 and Civil Misc. Writ Petition No. 52462 of 2003 wherein it has been held that the members of Bhar Caste (Denotified Tribe/Vimukt Jati) are entitled to be provided the benefit of reservation treating them to be the members of the Scheduled Caste/Scheduled Tribe. It has further been contended that this Court vide judgment and order dated 14th July, 2004 passed in Civil Misc. Writ Petition No. 25142 of 2004. Bhaiya Lal and Anr. v. Special Secretary Department of Education, Uttar Pradesh Shashan Lucknow, in respect of members belonging to the Bhar Caste has held as follows :',
	(int) 8 => '<p>'The petitioner belongs to 'Bhar' tribe in the British rule, the 'Bhar' tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified 'vagrant tribes', and offered several concessions and relaxation along with financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include 'Bhar' at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the 'Bhar' and 'Rajbhar' category is treated and included at item No. 27 Schedule I, as other backward classes in U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994...............................................................................',
	(int) 9 => '<p>The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits.',
	(int) 10 => '<p>The Special B.T.C. Course, 2004 is a condensed bridge course for all those, who have teaching qualifications like B. Ed./L.T. other than teaching qualifications for basic teachers' training for the purpose of employment as assistant teachers in Baste Schools run by U. P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher.'',
	(int) 11 => '<p>8. On the strength of the aforesaid judgment the petitioners pray for similar relief in first writ petition.',
	(int) 12 => '<p>9. I have heard learned counsel for the parties and have gone through the records.',
	(int) 13 => '<p>10. In the opinion of the Court the judgments relied upon by the petitioners referred to above have not noticed the Constitutional provisions which regulate declaration of the particular caste as Scheduled Caste/Scheduled Tribe, as also the judgments of the Hon'ble Supreme Court squarely applicable on the subject and as such are per incuriam. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows :',
	(int) 14 => '<p>'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratiurn. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratiurn of a statute or other binding authority'. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Law of England incorporating one of the exceptions when the decision of an appellate court is not binding.'',
	(int) 15 => '<p>11. Reference may be had to the provisions of Article 341 and Article 342 of the <a>Constitution of India</a>, which regulate the declaration of castes to be included in the Scheduled Caste as well as in the Schedule Tribe. For ready reference Article 341 and Article 342 of the <a>Constitution of India</a> are quoted below :',
	(int) 16 => '<p>'341. Scheduled Castes.--(1) The President, may with respect to any State (or Union Territory), and where it is a State (***) 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).',
	(int) 17 => '<p>(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 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.',
	(int) 18 => '<p>342. Scheduled Tribes.--(1) The President (may with respect to any State (or Union territory) and where it is a State (88) after consultation with the Governor (88) thereof,) by public notification, specify the tribes or tribal communities or parts of 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).',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>12. In exercise of powers under Articles 341(1) and 342(2), the President of India has issued Constitution (Scheduled Castes) Order, 1950, which has been amended from time to time by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, namely Scheduled Castes and Scheduled Tribes Orders (Amendment) Act No. 63 of 1956, Act No. 108 of 1976, Act No. 18 of 1987 and Act No. 15 of 1990.',
	(int) 21 => '<p>13. From the aforesaid constitutional provision, it is apparently clear that the power to specify the castes, races, or tribes or parts of the groups or such tribes as Scheduled Castes and Scheduled Tribes in relation to that State (or Union territory as the case may be) at the first instance vest with the President of India only. Once the said power has been exercised by the President under Article 341(1), any inclusion or exclusion from the list of Scheduled Castes specified in the original notification can be affected only by a law framed by the Parliament. Thus, even a subsequent Presidents' notification cannot amend or vary the list which has been issued originally under Articles 341(1) and 342(1) respectively by the President of India by notification. Therefore, in order to determine whether a particular caste is one of the Scheduled Caste/Scheduled Tribe within the meaning of Articles 341 and 342 of the Constitution respectively, one has to look to the terms of the order issued under Articles 341(1) and 342(2) respectively by the President of India and any amendment or variation made by the Parliament by law subsequent thereto. Even the President of India has not been conferred any power to vary or add other caste or tribes to the original notification issued under Articles 341 and 342 of the <a>Constitution of India</a>. Similarly the Courts also are devoid of powers to include or exclude, to vary or substitute or declare synonyms to be the Scheduled Castes or Scheduled Tribes or parts thereof or groups of such castes or tribes.' Reference : Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306 ; Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur and Ors., AIR 1996 SC 1728 and Dr. Preeti Srivastava v. State of M. P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120. The Hon'ble Supreme Court has further specifically held that the Courts have no power to go behind these orders. Reference : Paras rain and Anr. v. Shivchand and Ors., AIR 1969 SC 597. Reference may also be had to the judgment of the Hon'ble Supreme Court in Bhrahma Nand Puri v. Nekipuri since deceased represented by Mathpuri and Anr., AIR 1965 SC 1506, wherein it has been held that it is not open to anybody to seek any modification of the order by producing any evidence to show that though caste A alone is mentioned in the order, caste B was also a part of caste A, and as such was deemed to be a Scheduled Caste. It is, therefore, useless to refer to Gazetteers or glossaries for establishing that a caste is a 'Scheduled Caste', for the purposes of the Constitution, though not mentioned as such in the President's Order.',
	(int) 22 => '<p>14. No order issued by the State Government can in any way be the basis for claiming a right to be treated as Scheduled Caste/Scheduled Tribe or for the benefits of reservation being, provided, in respect thereto, contrary to the Presidential lists notified under Article 341 and Article 342 of the <a>Constitution of India</a> inasmuch as the State Government has no competence to issue any such orders. Even the State Legislature cannot pass a law for the said purpose. The Hon'ble Supreme Court in its latest judgment in E.V. Chinnaiah v. State of Andhra Pradesh and Ors., 2004 AIR SCW 6419, has held that the State Legislature or its executive has no power of 'disturbing' (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State. Therefore, any executive action or legislative enactment of States which interfers, disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential list will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.',
	(int) 23 => '<p>15. In view of the aforesaid this Court cannot travel beyond the Presidential lists issued under Article 341 and Article 342 respectively for the purposes of deciding the issue as to whether 'Bhar' caste is a Scheduled Caste or Scheduled Tribe. The Court has to confine its consideration to the Presidential lists issued in that regard only.',
	(int) 24 => '<p>16. It is admitted by the petitioners that Bhar Caste is not included in the Presidential list under Article 341 nor the Bhar Caste is included in the Presidential list of Scheduled Tribe issued under Article 342 of the <a>Constitution of India</a>. In such circumstances, the petitioners cannot be permitted to agitate before this Court on the strength of any evidence whatsoever that the Bhar Caste should be treated to be a Scheduled Caste or Scheduled Tribe and benefits of reservation be made available accordingly.',
	(int) 25 => '<p>17. In view of the aforesaid, the prayer made by the petitioners for being conferred the benefit of Scheduled Caste/Scheduled Tribe, cannot be granted by this Court and is accordingly rejected.',
	(int) 26 => '<p>18. Reference may also be had to the amendments made in the Constitution (Scheduled Castes/ Scheduled Tribe) Orders. In the State of Uttar Pradesh vide Scheduled Castes/ Scheduled Tribes Orders (Amendment) Act, 2002 being Act No. 1 of 2002 in relation to the State of Uttar Pradesh the following castes have been inserted/included, and which reads as follows :',
	(int) 27 => '<p>'(2) In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, after Entry 5 insert :',
	(int) 28 => '<p>(6) Gond, Dhuria, Nayak, Ojha, Raj Gond (in the Districts of Maharajganj, Siddharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jaunpur, Ballia, Ghazipur, Varanasi, Mirzapur and Sonbhadra).',
	(int) 29 => '<p>(7) Kharwar, Khairwar (in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra).',
	(int) 30 => '<p>(8) Saharya (in the District of Lalitpur).',
	(int) 31 => '<p>(9) Parahiya (in the District of Sonbhadra).',
	(int) 32 => '<p>(10) Baiga (in the District of Sonbhadra).',
	(int) 33 => '<p>(11) Pankha, Panika (in the Districts of Sonbhadra and Mirzapur).',
	(int) 34 => '<p>(12) Agariya (in the District of Sonbhadra).',
	(int) 35 => '<p>(13) Patari (in the District of Sonbhadra).',
	(int) 36 => '<p>(14) Chero (in the Districts of Sonbhadra and Varanasi).',
	(int) 37 => '<p>(15) Bhuiya, Bhuinya (in the District of Sonbhadra). ',
	(int) 38 => '<p>19. From the aforesaid it is apparently clear that in the said list also 'Bhar' and 'Rajbhar' communities have not been included in the list of Scheduled Caste/Scheduled Tribes Category under Article 341 or Article 342 respectively. In such circumstances, 'Bhar' and 'Rajbhar' communities being not included in the list of Scheduled Caste and Scheduled Tribe in accordance with the provisions of Constitution referred to hereinabove, members of the 'Bhar' and 'Rajbhar' communities are not entitled to the benefits of reservation as provided for Scheduled Caste/Scheduled Tribes candidates.',
	(int) 39 => '<p>20. Now coming to the Government orders dated 12th May, 1961 and dated 26th March, 1962, which are the sheet-anchor of the claim of the petitioners, it is worthwhile to mention that denotified tribes have specifically been mentioned as those, which are within the description of backward classes. For ready reference Clause 3 of the Government order dated 12th May, 1961, reads as follows :',
	(int) 40 => '<p>'3. The description 'Backward Classes' is commonly applied to the following sections of the population :',
	(int) 41 => '<p> (1) Scheduled Caste.',
	(int) 42 => '<p>(2) De-notified. Tribes and Vagrant Tribes.................'',
	(int) 43 => '<p>4. There is a widespread feeling among large sections of Backward Classes that the most backward and less vocal among them did not get an adequate share in the available funds and facilities. It has accordingly been decided to give preference among Scheduled Castes to the communities who are engaged in unclean professions, such as scavenging, flaying and tanning, and the Denotified Tribe included in the list of Scheduled Castes. These communities will be in Category A and will get preference over others in Category B. The lists of communities in the two categories are enclosed.............',
	(int) 44 => '<p>6. As stated in paragraph 3 above, though there are no Scheduled Tribes recognized as such in the Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. These tribes are (1) Bhil, (2) Buxas, (3) Bhuiya, (4) Bhotia, (5) Bora, (6) Chero, (7) Gond, (8) Koltas and other Polyandras in Jaunsar-Bawar and Ranwain-Jaunpur Parganas of Tehri and Uttar Kashi Districts, (9) Kharwar, (10) Kol, (11) Korwa, (12) Rajis (Banmanus) of Askot Forest, (13) Tharu and (14) Muslim Gujjars in the hills. Out of these fourteen communities six communities at No. (3), (5), (7), (10) and (11) are already included in the list of Scheduled Castes, one community at No. (4) in the list of other Backward Classes and have been getting concessions admissible to them. The remaining six communities may also be given the benefit of education facilities provided for the students belonging to other Backward Classes '',
	(int) 45 => '<p>21. Reference may also be had to the Government order dated 26th March, 1962, which reads as follows :',
	(int) 46 => '<p>'No. 148B-/XXVI-700(5)/1959',
	(int) 47 => '<p>From :',
	(int) 48 => '<p>Sri Iftikhar Hussain',
	(int) 49 => '<p>Up Sachiv',
	(int) 50 => '<p>Uttar Pradesh',
	(int) 51 => '<p>Shashan',
	(int) 52 => '<p>To,',
	(int) 53 => '<p>The Nideshak',
	(int) 54 => '<p>Harijan Kalyan, U. P. ',
	(int) 55 => '<p>Dated : Lucknow, March 26, 1962Subject : Welfare Scheme for Denotified Tribes and Vagrant Tribes.',
	(int) 56 => '<p>Sir,',
	(int) 57 => '<p>I am directed to refer to G.O. No. 899 (1)/XXVI-700(5)/1959, dated May 12, 1961, on the above subject, and to say that in the list of Denotified Tribes circulated therewith nineteen de-notified communities noted in the margin were not included as these communities are already included in the list of Scheduled Castes, with the result that these communities were :',
	(int) 58 => '<p>1. Masahar 5. Gujar 9. Karwal 13. Karwal 17. Bhar2. Nat 6. Kanjar 10. Bhantu 14. Aheria 18. Chamar(Bahelia)3. Pasi 7. Khatik 11. Habura 15. Badak 19. Dom4. Dusadh 8. Barwar 12. Sansia 16. BeriaPrecluded from the benefits available under the various welfare schemes meant for Denotified Tribes. On communities will be and are hereby included in the list of denotified tribes.'',
	(int) 59 => '<p>22. A bare perusal of the aforesaid Government orders would establish that the State Government has not declared the Bhar Caste to be the Scheduled Caste/Scheduled Tribe in any manner nor the State Government has the competence to grant any such declaration in view of Article 341 and Article 342 of the <a>Constitution of India</a>. On the contrary the State Government has specifically provided the Bhar Caste to be the members of the Denotified tribe (Vimukt Jati) whereby they are entitled to be given educational facilities provided for the student belonging to other Backward Classes.',
	(int) 60 => '<p>23. On the strength of the aforesaid Government orders, it cannot be claimed that the Bhar Caste, on being declared to be a de-notified tribes automatically became Scheduled Caste/Scheduled Tribe and the members of such de-notified tribe become entitled to the benefits of reservation as provided to the members of Scheduled Caste/ Scheduled Tribe.',
	(int) 61 => '<p>24. At this stage it is worthwhile to refer to the gazette/notification dated 6th June, 2002, whereby 'Bhar' and 'Rajbhar' castes have been included in the category of other Backward Classes Category. Under the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002, which has come into force w.e.f. 15th September, 2001, at item No. 40 of Section 2 Kha, in Schedule I 'Bhar' and 'Rajbhar' communities have been been placed within the Other Backward Classes Category. The inclusion of aforesaid castes of 'Bhar' and 'Rajbhar' vide aforesaid Act in the Other Backward Classes Category has not been challenged nor has been questioned by the petitioners in any manner before this Court.',
	(int) 62 => '<p>25. In such circumstances, the relief prayed for by the petitioners in the writ petitions (members of 'Bhar' and 'Rajbhar' communities) are rightly being treated as Other Backward Classes. They cannot be granted the benefit of reservation as provided to Scheduled Caste/Scheduled Tribe candidates.',
	(int) 63 => '<p>26. All the writ petitions are devoid of merits and are accordingly dismissed.<p>',
	(int) 64 => '<p>'
)
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Subject	Constitution
Court	Allahabad High Court
Decided On	Dec-23-2004
Case Number	C.M.W.P. No. 42348 of 2004 and 5 Writ Petitions
Judge	Arun Tandon, J.
Reported in	AIR2005All181; 2005(1)AWC811
Acts	Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) (Amendment) Act, 2002; Criminal Tribes Act; Uttar Pradesh Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994; Constitution of India - Articles 141, 341, 341(1), 342 and 342(2)
Appellant	Vijay Prakash
Respondent	State of U.P. and ors.
Appellant Advocate	L.D. Rajbhar, Adv.
Respondent Advocate	Mahendra Pratap Singh, Adv. and ;Piyush Shukla, S.C.
Disposition	Petition dismissed
Cases Referred	E.V. Chinnaiah v. State of Andhra Pradesh and Ors.

Vijay Prakash Vs. State of U.P. and ors. - Court Judgment