Himachal Pradesh High Court
Nikku Ram vs Secretary on 6 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 01 of 2021.
.
Judgment reserved on : 02.01.2021.
Date of decision: 06.01.2021.
Nikku Ram .....Petitioner.
Versus
Secretary, Social Justice & Empowerment and others r .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Ajit Sharma, Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate
General with Mr. Vinod
Thakur, Mr. Vikas Rathore,
Mr. Nand Lal Thakur, Mr. Shiv
Pal Manhans, Additional
Advocate Generals, Ms.
Seema Sharma, Mr.
Bhupinder Thakur and Mr.
Yudhbir Singh Thakur,
Deputy Advocate Generals,
for respondents No. 1 to
4/State.
Mr.Ajeet Singh Saklani,
Advocate, for respondent
No.5.
Through Video Conferencing.
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 2 Tarlok Singh Chauhan, Judge .
The petitioner has filed the instant petition for grant of the following reliefs:
"A.That the respondents be directed to issue a fresh OBC Certificate in favour of the petitioner. B. That the respondents may kindly be directed to permit the petitioner to file his nomination for the upcoming elections."
2. It is not in dispute that the application of the petitioner for issuance of 'OBC' Certificate was rejected in response to his application filed on the online portal on 22.12.2020 with the remarks that the applicant does not belong to the 'OBC' Category and belongs to the 'Brahman' Caste. However, petitioner would claim that similar certificates have not only been issued in the past, but on that basis, he had contested last elections held in the year 2016. Therefore, it is not open to the respondents to dispute the status of the petitioner as 'OBC'.
3. The respondents have categorically stated in their instructions that Certificate No. 7219 dated 24.11.2015 on the basis of which the petitioner contested the previous ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 3 elections was issued inadvertently and, therefore, the respondents cannot be directed to repeat the mistake.
.
4. In the notification issued by the State Government on 09.09.2011, the following entry is found at Serial No. 41.
"41. Maha Brahman,Acharj, Charj, Acharya, connected with the rituals of death and last rites of Hindus."
5. The petitioner, admittedly, is a 'Brahman' and is trying to claim the status of OBC on the basis of sub-caste (Gotar) being a 'Acharj, which according to the respondents, is not permissible, as the OBC Certificate can only be issued on the basis of the caste and not on the basis of the sub-
caste.
6. However, the moot question is whether a dispute of the instant kind can be resolved by way of a writ petition.
7. A three Judge Bench of the Hon'ble Supreme Court in Civil Appeal No.4096/2020, titled 'The State of Maharashtra and another versus Keshao Vishwanath Sonone and another' decided on 18.12.2020 was confronted with somewhat similar issue. The Hon'ble ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 4 Supreme Court framed the following questions for consideration:
.
"1) Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste "Gowari", which is not included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as "Gond Govari" which is included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to adjudicate such claim?
2) Whether the ratio of the judgment of the Constitution Bench of this Court in B. Basavalingappa Vs. D. Munichinnappa, AIR 1965 SC 1269 permits the High Court to take evidence to find out whether 'Gowari' are 'Gond Gowari' and is there any conflict in ratio of judgment of Constitution Bench in B. Basavalingappa and subsequent Constitution Bench judgment of this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC 4?
3) Whether the High Court could have entered into the adjudication of the issue that 'Gond Gowari' which is a Scheduled Tribe mentioned in Scheduled Tribes Order, 1950, as amended up to date is no more in existence and was extinct before 1911?
4) Whether the conclusion of the High Court in the impugned judgment that 'Gond Gowari' Tribe was extinct before 1911 is supported on the materials which were on record before the High Court?
5) Whether caste 'Gowari' is same as 'Gond Gowari' included at Item No.28, Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 and the High Court could have granted declaration to caste 'Gowari' as ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 5 'Gond Gowari' entitled for Scheduled Tribe certificate?
.
6) Whether the High Court is correct in its view that 'Gond Gowari' shown as Item No.28 in Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 is not a sub-tribe of Gond, hence, its validity cannot be tested on the basis of affinity test specified in Government Resolution dated 24.04.1985?
8. Questions No.1 and 2 which alone are relevant for the adjudication of the instant petition were jointly taken up together for consideration and considered as under:
"41. The Constitution of India contains ample provisions for fulfilment of the Constitutional aspirations of social justice to the Scheduled Castes and Scheduled Tribes and to socially and educationally backward classes of citizens. Articles 341 and 342 and Part XIV of the Constitution contains several provisions as special provisions relating to certain classes. Article 342 of the Constitution envisages public notification specifying the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall be for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to a State after consultation with Governor thereof. Sub-clause (2) contains another important provision which provides that any inclusion or exclusion from the list of Scheduled Tribes specified in a notification issued under clause (1) of Article 342 can be done only by Parliament by law.::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 6
Sub-clause (2) of Article 342, thus, contains a provision conferring authority only to the Parliament .
to include and exclude a Scheduled Tribe in the list as specified in the sub-clause (1) of Article 342. There has been a series of judgments of this Court including Constitution Benches on Articles 341 and 342 as well as entries in Scheduled Castes and Scheduled Tribes Order, 1950. This Court had occasion to consider as to what extent the Courts including the High court and this Court could interpret the entries in Scheduled Castes and Scheduled Tribes Orders. The High Court has heavily relied on Constitution Bench judgment of this Court in B.Basavalingappa Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269.
42. We may first notice the above judgment. An Election Petition was filed challenging the election of respondent No.1 on the ground that respondent No.1 not being member of any Scheduled Castes mentioned in Constitution (Scheduled Castes) Order, 1950 could not have contested the election from Scheduled Caste Constituency. The respondent claimed that he belongs to a Scheduled Caste listed as Bhovi in the Order. the appellant's case was that respondent No.1 was a Voddar by caste, which was not a Scheduled Caste. The Election Tribunal held that the caste mentioned as Bhovi in the Scheduled Castes Order was a subcaste amongst the Voddars and the entire Voddar caste not being included as Scheduled Caste, the respondent NO.1 was ineligible. The election was set aside. On appeal, High Court ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 7 held that Voddars caste as such was not included in the Order, but considering the facts and .
circumstances in existence at the time when the Order was passed in 1950, the Bhovi caste mentioned therein was no other than Voddar caste.
The High Court allowed the appeal, against which judgment, appeal was filed in this Court. The Constitution Bench of this Court speaking through Wanchoo, J. held that it is not open to make any modification in the Order by producing evidence to show that though caste A alone is mentioned in the Order, caste B is also a part of caste A. The ratio of the judgment is clearly discernible from paragraph 6 of the judgment, which is to the following effect:-
"6. It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and therefore must be deem to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order [see Aray (Mala) Dakkal (Dokkalwar) etc.]. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B (in the example quoted above) is part of caste A notified in the Order. Ordinarily therefore it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order."::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 8
43. After noticing the above preposition in paragraph 6, this Court noticed the peculiar circumstances of the .
case where in the Mysore State as it was before reorganisation of 1956, there was no caste known as Bhovi at all. This Court, however, further emphasised that "if there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste". In the above case, this Court, however, further held that when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State and when one finds mentioned in the Order, one has to determine which was the caste which was meant. In paragraph 7 of the judgement, following has been laid down:-
"7. But that in our opinion does not conclude the matter in the peculiar circumstances of the present case. The difficult in the present case arises from the fact (which was not disputed before the High Court) that in the Mysore State as it was before the re-organisation of 1956 there was no caste known as Bhovi at all. The Order refers to a Scheduled caste known as Bhovi in the Mysore State as it was before 1956 and therefore it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the order though there was no such caste at all in the Mysore State as it existed before 1956. But when it is not disputed that there was no caste ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 9 specifically known as Bhovi in the Mysore State before 1956, the only course open to Courts to find out which casts was meant by Bhovi is to .
take evidence in that behalf. If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mentioned as Bhovi in the Order, one has to determine which was the caste which was meant by that word on its inclusion in the Order. It is this Peculiar circumstance, therefore, which necessitated the taking of evidence to determine which was the caste which was meant by the word 'Bhovi' used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956."
44. Shri Rohatgi, learned senior counsel appearing for the appellant has placed much reliance on paragraph 7 of the judgment and has contended that this Court approved the exercise undertaken by the High Court to find out which was the Bhovi caste, which was included in the Constitution (Scheduled Castes) Order, 1950, hence, an evidence was rightly looked into by the High Court, which received approval by this Court. Shri Rohatgi further submits that although in the B. Basavalingappa's case the factum that there was no caste in the Mysore State before reorganisation known as Bhovi at all was not disputed but the fact that whether it is disputed or not disputed shall not make any difference, whenever ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 10 the issue is raised that has been answered by the Courts looking into the evidence.
.
45. The observations made by this Court in paragraph 7 in no manner dilutes the ratio of the judgment as laid down in paragraph 6 quoted above.
This Court approved the High Court exercise of looking into the evidence to determine which was the caste which was meant by the word "Bhovi" in the Order in the peculiar circumstances of the case where the fact was not disputed that there was no caste known as Bhovi in the Mysore State before 1956. In paragraph 7, these following two observations made by this Court are in full accord with the ratio as laid down in paragraph 6, they are:-
"7. .............................It cannot be accepted that the President included the caste Bhovi in the order though there was no such caste at all in the Mysore State as it existed before 1956. .................................................. If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. ...................................."
46. In the present case, the case of the respondent in the writ petition was categorical that Gond Gowari was a caste which was in existence since before 25.09.1956. Even the High Court in the impugned judgment has said that caste Gond Gowari did not exist prior to 1956 rather the High Court held that caste was there but it became extinct prior to 1911.
::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 11Thus, the circumstances in which this Court in B. Basavalingappa's case approved the looking of the .
evidence were peculiar to that case and has no application in the facts of the present case.
47. We may notice another Constitution Bench judgment in Bhaiya Lal Vs. Harikishan Singh and Ors., AIR 1965 SC 1557, which was delivered few months after judgment of B. Basavalingappa's case, noted the ratio of judgment and reiterated that though the appellant was not a Scheduled Caste as enumerated in the Scheduled Castes Order but he belonged to another caste, which is sub-caste of Scheduled Caste, cannot be looked into. In the above case, Bhaiya Lal was elected from reserved seat. Election was challenged on the ground that Bhaiya Lal belonged to Dohar caste and was not a Chamar. Bhaiya Lal in his nomination has declared that he was member of Chamar Scheduled Caste. Election Tribunal found against the elected candidate and set aside the election. The High Court dismissed the appeal. Bhaiya Lal questioned the judgment of the High Court as well as the Election Tribunal. The case of the appellant was that he was a Dohar Chamar, which is a sub-caste of Chamar Scheduled Caste. This Court held that the claim that Dohar caste is a sub-caste of Chamar caste cannot be entertained. in paragraph 8 following has been laid down:-
"8. Incidentally, we may point out that the plea that the Dohar caste is a subcaste of the Chamar caste cannot be entertained in the ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 12 present proceedings in view of the Constitution (Scheduled Castes) Order, 1950. This Order has been issued by the President under Article 341 .
of the Constitution. Article 341(1) provides that the President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races, or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. Sub-article (2) lays down that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. It is thus clear, that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a subcaste of the Chamar caste, cannot be accepted. It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in Article 341. In the case of B. Basavalingappa v. D. Munichinnappa this Court had occasion to ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 13 consider a similar question. The question which arose for decision in that case was whether Respondent 1, though Voddar by caste, .
belonged to the scheduled caste of Bhovi mentioned in the Order, and while holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual circumstances which justified the High Court in holding that Voddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be:
"it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A." That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted."
48. In Bhaiya Lal's case, the Constitution Bench reiterated the ratio of B. Basavalingappa's case in following words:-
"it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A."
49. We may notice few more judgments of this Court where the law on the subject was explained and ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 14 reiterated. In Srish Kumar Choudhury Vs. State of Tripura and Ors., 1990 Supp SCC 220, this Court had .
occasion to consider Article 342. In the above case, the appellant had filed an application in a representative capacity before the High Court claiming that he belonged to Laskar community, which has always been treated in the erstwhile State of Tripura as a Scheduled Tribe. The writ petition was dismissed by the High Court against which the appeal was filed. This Court referred to earlier two Constitution Bench judgments in B. Basavalingappa's case and Bhaiya Lal's case. The observations made by the Constitution Bench in B. Basavalingappa's case and Bhaiya Lal's case were extracted in paragraphs 8, 9 and 10. In paragraph 9, Three Judge Bench quoted the extract from Bhaiya Lal's judgment and in paragraph 11, it was held that the ratio of judgment of Bhaiya Lal's case supports the view of earlier judgment of Constitution Bench in B. Basavalingappa's case. In paragraphs 10 and 11, following has been laid down;-
"10. A similar dispute again came before a Constitution Bench in Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 with reference to a scheduled tribe in an election dispute. Gajendragadkar, C.J. speaking for the court said : (SCR pp. 882-83) "It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 15 educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole .
caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under Article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State."
11. What we have extracted above clearly supports the view of the other Constitution Bench, namely, the list is intended to be final."
50. The Three Judge Bench reiterated that Courts cannot enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community. In paragraph 20, following was laid down:-
"20. The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 16 amendment to the Presidential Order can only be by legislation. We do not think we should assume jurisdiction and enter into an .
enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community;
........................................"
This Court also reiterated that enquiry is contemplated before the Presidential Order is made.
51. The next judgment to be noticed is Palghat Jilla Thandan Smudhaya Samrakshna Samithi and Anr. Vs. State of Kerala and Anr., (1994) 1 SCC 359. In the above case, a writ petition was filed claiming that the petitioner belonged to Thandan community, therefore, a Scheduled Caste certificate be issued.
The writ petition was allowed, however, the petitioner was denied admission in M.B.B.S. course in seat reserved for Scheduled Caste on the ground that she was not a Thandan. A Three Judge Bench of this Court after noticing the ratio of earlier two Constitution Bench judgments has held that the Court could not assume the jurisdiction and order an enquiry to determine whether the terms of the Presidential Order includes a particular community. In paragraphs 17 and 18, following was laid down:-
"17. We may usefully draw attention to the judgment of a Bench of three learned Judges of this Court in Srish Kumar Choudhury v. State of Tripura, 1990 Supp SCC 220. This judgment considered the Constitution Bench ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 17 judgments in B. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269 and Bhaiyalal v. Harikishan Singh, AIR 1965 SC .
1557 and certain other judgments. It held that the two Constitution Bench judgments indicated that any amendment to the Presidential Orders could only be by legislation. The Court could not assume jurisdiction and order an enquiry to determine whether the terms of the Presidential Order included a particular community. A State Government was entitled to initiate appropriate proposals for modification in cases where it was satisfied that modifications were necessary and, if after appropriate enquiry, the authorities were satisfied that a modification was required, an amendment could be undertaken as provided by the Constitution.
18. These judgments leave no doubt that the Scheduled Castes Order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. No action to modify the plain effect of the Scheduled Castes Order, except as contemplated by Article 341, is valid."
52. A Two Judge Bench in Kumari Madhuri Patil and Anr. Vs. Addl. Commissioner, Tribal Development and Ors., (1994) 6 SCC 241 had occasion to consider the Constitution (Scheduled Tribes) Order, 1950 as applicable to State of Maharashtra. In Constitution (Scheduled Tribes) Order, 1950, caste "Mahadeo Koli"
was included. The appellants claimed that they were entitled to Scheduled Tribe certificate of Mahadeo Koli whereas caste was shown in admission register as "Hindu Koli". The Scheduled Caste certificate was ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 18 refused. A writ petition was filed in the High Court, which was dismissed against which the matter came to this Court. This Court held that Scheduled Caste .
notified was Mahadeo Koli and the petitioners being Hindu Koli were not entitled for the Scheduled Tribes certificate. In paragraph 9, following has been laid down:-
"9. .................................................................. ....It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact disentitled to such status. The case in hand is a clear instance of such pseudostatus. Kolis have been declared to be OBC in the State of Maharashtra being fishermen, in that their avocation is fishing and they live mainly in the coastal region of Maharashtra. Mahadeo Kolis are hill tribes and it is not a subcaste. Even prior to independence, the Maharashtra Government declared Mahadeo Koli to be criminal tribe as early as 29- 5-1933 in Serial No. 15 in List II thereof. In 1942 Resolution in Serial No. 15 in Schedule B of the Bombay resolution Mahadeo Koli tribe was notified as a Scheduled Tribe. It was later amended as Serial No. 13. In the Presidential Scheduled Castes/Scheduled Tribes Order, 1950, it was reiterated. A slight modification was made in that behalf by the Presidential Notification dated 29-10- 1956. In the 1976 Amendment ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 19 Act, there is no substantial change except removing the area restriction. Thus Mahadeo Koli, a Scheduled Tribe continued to be a .
Scheduled Tribe even after independence.
The Presidential Notification, 1950 also does recognise by public notification of their status as Scheduled Tribes. The assumption of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case1, that Mahadeo Koli was recognised for the first time in 1976 under Amendment Act, 1976, as Scheduled Tribe is not relatable to reality and an erroneous assumption made without any attempt to investigate the truth in that behalf. Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or subcastes/ parts of or groups of tribes or tribal communities is permissible."
53. A Three Judge Bench in Nityanand Sharma and Anr. Vs. State of Bihar and Ors., (1996) 3 SCC 576 had also considered the similar question. The question which was up for consideration has been noted in paragraph 2 of the judgment to the following effect:-
"2. Short but an important question of constitutional law of the power of the court to declare a particular tribe to be Scheduled Tribe under Scheduled Castes and Scheduled Tribes Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Orders (Amendment Act), 1976 (for short "the Act") is the primary question."
54. The petitioner in the above case belonged to Lohar community. They claimed Scheduled Tribe ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 20 certificate. The State resisted the claim that Lohar in State of Bihar is recognised as Other Backward Class .
and not Scheduled Tribe. The entry in the Scheduled Tribe Order mentioned Lohara/Lohra. This Court held that the question which is up for consideration is no longer res integra and is covered by ratio of the Constitution Bench judgment in Bhaiya Lal and B. Basavalingappa case. In paragraphs 13 and 15, following was laid down:-
r to "13. The question then is: Whether Lohars could be considered by the Court as synonyms of Loharas or Lohras? This question is no longer res integra. In Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 a Constitution Bench of this Court had considered in an election petition whether Dadar caste was a Scheduled Caste. It held that the President in specifying a caste, race or tribe has expressly been authorised to limit the notification to parts of or groups within the caste, race or tribes. It must mean that after examining the social and educational backwardness of a caste, race or a tribe, the President may come to the conclusion that not the whole caste, race or tribe, but parts of or groups within them should be specified as Scheduled Caste or Scheduled Tribe. The result of the specification is conclusive. Notification issued under Article 341(1), after an elaborate enquiry in consultation with the Governor and reaching the conclusion specifying particular caste, race or tribe with reference to different areas in the State, is conclusive. The same view was reiterated in ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 21 B. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269.
.
15. It is for Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, "Scheduled Tribes" defined under Article 366(25) as substituted (sic) under the Act, and the Second Schedule thereunder are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the Schedule concerned, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe."
55. Rejecting the claim of Lohar as Scheduled Tribe, following was laid down in paragraphs 18 and 20:-
"18. It is seen that in the Second Schedule in Part III of the Act, as extracted hereinbefore, Lohar was not included as a Scheduled Tribe. It is only, as evidenced from the translated version, that the community 'Lohar' came to be wrongly translated for the word 'Lohra' or 'Lohara' and shown to have been included in the ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 22 Second Schedule, Part III, applicable to Bihar State. Mr. B.B. Singh, therefore, is right in placing before us the original .
version in English and the translated version.
20. Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are blacksmiths. We approve the said view laying down the correct law."
56. Now, we come to a subsequent Constitution Bench judgment of this Court in State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4. Before the Constitution Bench, two questions arose, which are noted in paragraph 1 of the judgment to the following effect:-
"In this appeal, the following two questions arise for consideration:
(1) Whether at all, it is permissible to hold inquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 23 in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950?
.
(2) Whether "Halba-Koshti" caste is a subtribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to the State of Maharashtra, even though it is not specifically mentioned as such?"
57. Entry 19 of the Constitution (Scheduled Tribes) Order, 1950 as applicable in the State of Maharashtra was Halba/Halbi. The claim was raised by another caste Halba-Koshti that they are also entitled for issue of Scheduled Tribe certificate. The caste certificate of the respondent was rejected by the Caste Scrutiny Committee against which an appeal was filed, which was dismissed holding that respondent No.1 belonged to Koshti and did not belong to Halba/Halbi Scheduled Tribe. Writ petition was filed by respondent No.1, which was allowed by the High Court holding that it was permissible to enquire whether any sub-division of a tribe was a part and parcel of the tribe mentioned therein and that 'Halba-Koshti' is a subdivision of main tribe 'Halba'/'Halbi' as per Entry No. 19 in the Scheduled Tribe Order applicable to Maharashtra. In paragraph 5 of the judgment, following was held by this Court:-
"5. The High Court allowed the writ petition and quashed the impugned orders inter alia holding that it was permissible to inquire whether any subdivision of a tribe was a part and parcel of the tribe mentioned therein and that "Halba-Koshti" is a ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 24 subdivision of main tribe "Halba/Halbi" as per Entry 19 in the Scheduled Tribes Order applicable to Maharashtra. Hence the State .
of Maharashtra has come up in appeal by special leave, questioning the validity and correctness of the order of the High Court allowing the writ petition of Respondent 1."
58. This Court after noticing the constitutional provisions held that it is not possible to say that State Governments or any other authority or courts or tribunals are vested with any power to modify or vary the Scheduled Tribes Orders. This Court also held that no enquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included. In paragraph 12, following has been laid down:-
"12. ..............................................It appears that the object of clause (1) of Articles 341 and 342 was to keep away disputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whether a particular caste or a tribe is Scheduled Caste or Scheduled Tribe as the case may be, within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342, is to be determined looking to them as they are. Clause (2) of the said articles does not permit any one to seek modification of the said orders by leading evidence that the caste/Tribe (A) alone is mentioned in the Order but caste/Tribe (B) is also a part of ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 25 caste/Tribe (A) and as such caste/Tribe (B) should be deemed to be a Scheduled Caste/Scheduled Tribe as the case may be.
.
It is only Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the entries in the schedules pertaining to each State whenever one caste/tribe has another name it is so mentioned in the brackets after it in the schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or courts or Tribunals are vested with any power to modify or vary the said Orders. If that be so, no inquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included in the Orders. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful."
59. The Constitution Bench reiterated that the power to include or exclude, amend or alter the Presidential ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 26 Order is expressly and exclusively conferred on and vested with the Parliament and Courts cannot and .
should not extend jurisdiction to deal with the question as to whether a particular caste or sub- caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order. Following was laid down in paragraph 15:-
"15. Thus it is clear that States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering r with the Presidential Orders either to gain popularity or secure votes. Number of persons in order to gain advantage in securing admissions in educational institutions and employment in State services have been claiming as belonging to either Scheduled Castes or Scheduled Tribes depriving genuine and needy persons belonging to Scheduled Castes and Scheduled Tribes covered by the Presidential Orders, defeating and frustrating to a large extent the very object of protective discrimination given to such people based on their educational and social backwardness. Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 27 by law made by Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and .
exclusively conferred on and vested with Parliament and that too by making a law in that regard. The President had the benefit of consulting the States through Governors of States which had the means and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it is Parliament that is in a better position to know having the means and machinery unlike courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically included, may lead to problems........................................"
60. It is further to be noticed that Constitution Bench in Milind's case (supra) has noted the ratio of earlier two Constitution Bench judgments in B. Basavalingappa's case and Bhaiya Lal's case and in paragraph 28 has reaffirmed the ration of above two Constitution Bench judgments. In paragraph 28, following is laid down:-
"28. Being in respectful agreement, we reaffirm the ratio of the two Constitution Bench judgments aforementioned and state in clear terms that no inquiry at all is ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 28 permissible and no evidence can be let in, to find out and decide that if any tribe or tribal community or part of or group within .
any tribe or tribal community is included within the scope and meaning of the entry concerned in the Presidential Order when it is not so expressly or specifically included. Hence, we answer Question 1 in the negative."
61. In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe "Gowari" is part of Scheduled Tribe "Gond Gowari", which is included in the Constitution (Scheduled Tribes) Order, 1950. It is further clear that there is no conflict in the ratio of Constitution Bench judgments of this Court in B. Basavalingappa's case and State of Maharashtra Vs. Milind and Ors.(supra).
The ratio of B. Basavalingappa's case as noted in paragraph 6 of the judgment and extracted above is reiterated by subsequent two Constitution Bench judgments in Bhaiya Lal's case and Milind's case.
There being no conflict in the ratio of the above Three Constitution Bench judgments, we do not find any substance in submission of Shri Rohatgi that for resolving the conflict, the matter need to be referred to a larger Constitution Bench. We, thus, answer question Nos.1 and 2 in following words:-
(i) The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste "Gowari"::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 29
that it be declared a Scheduled Tribe as "Gond Gowari" included at Entry No.18 of the Constitution (Scheduled Tribes) Order, .
1950 nor High Court could have taken evidence to adjudicate the above claim.
(ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa's case and Milind's case."
9. On the basis of the aforesaid reasoning, questions No.1 and 2 were answered in the following words:
"(i) The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste "Gowari" that it be declared a Scheduled Tribe as "Gond Gowari" included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken evidence to adjudicate the above claim.
(ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa's case and Milind's case."
10. In view of the aforesaid exposition of law, it is evidently clear that it is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the tribes ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 30 specified in the Order or include in or substitute any caste/tribe etc. No inquiry is permissible and no evidence .
can be led in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included. Even the States have no powers to amend Presidential Orders. Courts cannot and should not expand jurisdiction to deal with the question as to whether r a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342, particularly, so when in Clause (2) of the said Article , it is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard. The President has the benefit of consulting the States through Governors of States which has the means and machinery to find out and recommend as to whether a particular caste or tribe is to be included in the Presidential Order. If the said orders are to be amended, it is Parliament that is in a better position to know having ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 31 the means and machinery unlike Courts as to why a particular caste or tribe is to be included or excluded by .
law to be made by Parliament. Allowing the State Governments or Courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the Schedule of the Presidential Order, when it is not so specifically included, may lead to problems.
11. In view of the aforesaid exposition of law, one comes to an inescapable conclusion that the High Court cannot entertain the claim and decide whether a particular caste or tribe is to be included in the Presidential Order.
12. As a last ditch effort, learned counsel for the petitioner would urge that the action of the respondents is discriminatory inasmuch as one Mukesh Kumar, who is similarly situated to the petitioner has been issued OBC Certificate on the ground that he belongs to Acharj which is recognized as Other Backward Class, whereas, he in fact by caste is 'Brahman' and his sub-caste is only Acharj.
However, we find no merit in this submission for the simple reason that the petitioner has placed no material on record ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 32 to show that Mukesh Kumar in fact belongs to 'Brahman' caste and only his sub-caste is Acharj.
.
13. On a pointed query from this Court as to whether the said Mukesh Kumar was in any way related to the petitioner closely or distantly, learned counsel for the petitioner answered in the negative.
14. It is more than settled that a plea of negative parity cannot be claimed and enforced as it is only a legal right which can be enforced in a Court of law. Reference in this regard can conveniently be made to a judgment of three Judge Bench decision of the Hon'ble Supreme Court in State of Odisha and another vs. Anup Kumar Senapati and another (2019) 12 Scale 386 wherein it was held as under:
"30. It was lastly submitted that concerning other persons, the orders have been passed by the Tribunal, which was affirmed by the High Court and grants-in-aid has been released under the Order of 1994 as such on the ground of parity this Court should not interfere. No doubt, there had been a divergence of opinion on the aforesaid issue. Be that as it may. In our opinion, there is no concept of negative equality under Article 14 of the Constitution. In case the person has a right, he has to be treated equally, but where right is not ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 33 available a person cannot claim rights to be treated equally as the right does not exist, negative equality .
when the right does not exist, cannot be claimed. In Basawaraj and another v. Special Land Acquisition Officer, (2013) 14 SCC 81, it was held thus:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right r on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581 and Fuljit Kaur v. State of Punjab, (2010) 11 SCC
455.)"
In Chaman Lal v. State of Punjab and others, (2014) 15 SCC 715, it was observed as under:
::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 34"16. More so, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit .
has been conferred upon someone inadvertently or otherwise, it may not be a ground to grant similar relief to others. This Court in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81 considered this issue and held as under: (SCC p. 85, para 8) "8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581 and Fuljit Kaur v. State of Punjab, (2010) 11 SCC
455.)""
::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 35In Fuljit Kaur v. State of Punjab and others, (2010) 11 SCC 455, it was observed thus:
.
"11. The respondent cannot claim parity with D.S. Laungia v. State of Punjab, AIR 1993 P & H 54, in view of the settled legal proposition that Article 14 of the Constitution of India does not envisage negative equality. Article 14 is not meant to perpetuate illegality or fraud. Article 14 of the Constitution has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial r forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. Even otherwise Article 14 cannot be stretched too far otherwise it would make function of the administration impossible. (Vide Coromandel Fertilizers Ltd.
v. Union of India, 1984 Supp SCC 457, Panchi Devi v. State of Rajasthan, (2009) 2 SCC 589 and Shanti Sports Club v. Union of India, (2009) 15 SCC 705)"
In Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of Uttaranchal and others, (2007) 11 SCC 641, this Court in the context of negative equality observed thus:
"28. This Court in Union of India v. International Trading Co. has held that two wrongs do not make one right. The appellant cannot claim that since something wrong has been done in another case, directions should be given for doing another wrong. It would not be setting a wrong right but could be ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 36 perpetuating another wrong and in such matters, there is no discrimination involved. The concept of equal treatment on the logic .
of Article 14 cannot be pressed into service in such cases. But the concept of equal treatment presupposes existence of similar legal foothold. It does not countenance repetition of a wrong action to bring wrongs on a par. The affected parties have to establish strength of their case on some other basis and not by claiming negative quality. In view of the law laid down by this Court in the above matter, the submission of the appellant has no force. In case, some of the persons have been granted permits wrongly, the appellant cannot claim the benefit of the wrong done by the Government."
In Bondu Ramaswamy and others v. Bangalore Development Authority and others, (2010) 7 SCC 129, this Court observed thus:
"146. If the rules/scheme/policy provides for deletion of certain categories of land and if the petitioner falls under those categories, he will be entitled to relief. But if under the rules or scheme or policy for deletion, his land is not eligible for deletion, his land cannot be deleted merely on the ground that some other land similarly situated had been deleted (even though that land also did not fall under any category eligible to be deleted), as that would amount to enforcing negative equality. But where large extents of land of others are indiscriminately and arbitrarily deleted, then the court may grant relief, if, on account of such deletions, the development scheme for that area has become inexecutable or has resulted in abandonment of the scheme."
In Kulwinder Pal Singh and another v. State of Punjab and others, (2016) 6 SCC 532, this Court while ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 37 relying upon State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330, observed as under:
.
"16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. InState of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330 it was held as under (SCC p. 337, para 15) r to "15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P, (1996) 7 SCC 426; Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35; State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321;
Faridabad CT Scan Centrev. DG, Health Services, (1997) 7 SCC 752; Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3 SCC 494; State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar v.
Govt. (NCT of Delhi), (2003) 3 SCC 548; Union of India v. International Trading Co., (2003) 5 SCC 437 and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority, (2006) 2 SCC 604.)"
Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality."
In Rajasthan State Industrial Development & Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and others, (2013) 5 SCC 427, this Court held as under:
::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 38"19. Even if the lands of other similarly situated persons have been released, the Society must satisfy the Court that it is .
similarly situated in all respects, and has an independent right to get the land released. Article 14 of the Constitution does not envisage negative equality, and it cannot be used to perpetuate any illegality. The doctrine of discrimination based upon the existence of an enforceable right, and Article 14 would hence apply, only when invidious discrimination is meted out to equals, similarly circumstanced without any rational basis, or to relationship that would warrant such discrimination. [Vide Sneh Prabha v. State of U.P., (1996) 7 SCC 426, Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548, r State of W.B. v. Debasish Mukherjee, (2011) 14 SCC 187 and Priya Gupta v. State of Chhattisgarh, (2012) 7 SCC 433.]"
In Arup Das and others v. State of Assam and others, (2012) 5 SCC 559, this Court observed as under:
"19. In a recent decision rendered by this Court in State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330, this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the select list does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 39 appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had .
committed a mistake, it cannot be forced to perpetuate the said mistake."
In State of Orissa and another v. Mamata Mohanty, (2011) 3 SCC 436, it was observed:
"56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide r Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745, Yogesh Kumar v. Govt. of NCT of Delhi, (2003) 3 SCC 548, Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164, K.K. Bhalla v. State of M.P., (2006) 3 SCC 581, Krishan Bhatt v. State of J & K, (2008) 9 SCC 24, State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65 and Union of India v. Kartick Chandra Mondal, (2010) 2 SCC 422)"
15. In addition to the aforesaid, we notice that the Government in its wisdom wherever it felt necessary has included the castes, classes and communities other than Scheduled Castes and Scheduled Tribes with and without appendages like the entires found at Serial Nos. 8,16,32, 36 and 41 etc. which read as under:
"8. Bhat or Bhatta (Whether with or without the appendage Brahman), Darpi.
16. Gorkha (Whether with or without appendage like Rajput, Brahman, Khatri etc.) ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP 40
32. Nai (Kulin Brahman)
36.Tarkhan, Badhai, Ramgarhi, Dhiman .
(Excluding Lohar), Vishwakarma Thawins.
41. Maha Brahman, Acharj, Acharya, connected with the rituals of death and last rites of Hindus."
16. In view of the aforesaid exposition of law, the instant writ petition is clearly not maintainable and the same is accordingly dismissed, so also r the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) 6th January, 2021. Judge (krt) ::: Downloaded on - 07/01/2021 20:37:58 :::HCHP