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