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VIJAY SHANKAR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Vijay Shankar v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 1658 of 2005 [2005] RD-AH 2813 (13 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

CRIMINAL MISC.  WRIT PETITION NO.  1658 OF 2005

Vijay Shankar           vs.   State of U.P.  and others  

HON. S.S. KULSHRESTHA, J.

HON. UMESHWAR PANDEY, J.

Heard and  also perused  the materials on record.

This petition has been brought for quashing the written report registered at case crime No.74 of 2005 under sections 467, 468,  471, 420 I.P.C.   police station  Kotwali City  district  Mirzapur.   Simultaneously   arrest of the petitioner is also desired to be  protected by way of  staying his arrest. It is said that the  petitioner  applied for the post of Assistant Prosecution Officer for which  advertisement was made  by  U.P. Public Service Commission in the year 1987-88. In pursuance of the  select list  drawn by  the  Commission, the petitioner was  appointed  as  Assistant Prosecuting Officer on 1.4.1991 and he was   sent for training  to the Police  Training Centre   Moradabad on 15.4.1991. Later on  controversy was raised that the petitioner since did not  belong   to Schedule Caste  community  and  so  the caste certificate  so produced by him is fake. In as much  the "Kasera" caste does not  fall  in the schedule caste category. This  is all said t o be misconceived  notion  leading to the lodging of F.I.R. It is further  contended that  "Kasera"  caste continued to remain  in schedule caste category  till 1994 in the Eastern part  of Uttar Pradesh  including Allahabad, Mirzapur, Kanpur and Azamgarh. The petitioner hails from Eastern part of Uttar Pradesh and so the petitioner was very much covered  within the Presidential  order in that  regard. After 1994, however,  the District Magistrate  stopped issuing  Schedule Caste certificate  to the candidates belonging to "Kasera"  caste. Since schedule caste certificate was issued  by the District Magistrate  much before  to the year 1994 and so the petitioner  was well covered under  the  notification declaring him "Kasera" to be  schedule caste.   It has further been contended  that by letter dated 23.3.1994, the Director Schedule Caste /Schedule Tribes  Research and Training Institute  U.P. Lucknow also  clarified  "Shilpkar" to be schedule caste which figured at sl. No. 62 in the Presidential notification  (Government order ) dated 22.5.1957.  Question involved in this case is that ; Whether  status of the petitioner  who is "Kasera" can be considered to fall under the schedule caste  category. Article 341 reads as under :-

"341. Scheduled Castes. - (1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races, or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or union Territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issue 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."

A reading thereof would clearly indicate that the President may, with respect to any State or Union Territory, after consultation with the Governor, by public notification, specify the castes, races or tribes or parts of or groups with 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. Under clause (2) thereof, the Parliament has been empowered by law either to include in or exclude from the list of Scheduled Castes specified by the President under clause (1) of Article 341, any caste, race or tribe or part of or group within any caste, race or tribe. Once the Parliament by law includes in or excludes from any race, caste, tribe, parts of or groups within any caste, race or tribes, the President thereafter shall have no power to vary by any subsequent notification the said caste, race, tribe or part of or group within any caste, race or tribe. Nothing could be  shown in the presidential order    that "Kasera" caste  has been notified to be schedule caste.  Apex Court in the  case of  Nityanand  Singh vs. State of Bihar  1996 (II) JT  117  and also in the case of  Prabhudev Mallikarjunaiah v. Ramachandra Veerappa and another AIR 1996 SC 1962 has also considered the scope of  the court to declare the entry of the presidential  notification  under Article 342 (1)  and had held that no court had power to give such declaration.  Prominent feature of this  case is that  the petitioner is changing his stand that in the past when he applied for the post, this "Kasera" caste was   included in the Schedule Caste in the Eastern Uttar, thereafter  it was denotified . In that regard, no such notification was   shown.

We do not find any justified and justifiable ground to interfere in the matter.  Reliance may also be placed on the principle of law enunciated in the cases of State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604, Ajay Mitra vs. State of UP [AIR 2003, (SC) Page 1069] and Union of India vs. Prakash P. Hinduja and another JT 2003 (5) SC 300.  

In the result this petition is dismissed.  

13-9-2005

skv1658-05


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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