Dr. Anjana Parmar vs State of U.P. and Others

Heard learned counsel for the petitioner and the learned counsel for the respondents. Instant writ petition under Article 226 of the Constitution of India, has been preferred against the impugned order dated 26.5.2011, passed by the U.P. Public Service Commission, Allahabad, rejecting petitioner''s claim for benefit of reservation under the caste Bhotia, belonging to the category of scheduled tribe. The reason assigned therein is that in accordance with the Government-order dated 9.5.2007, the caste Bhotia, does not fall within the category of scheduled tribe in the State of U.P. By assailing the impugned order, petitioner''s counsel invited attention to the notification issued under Article 342 of the Constitution of India, in the year 1967 according to which, Bhotia caste, has been included under scheduled tribe. The notification as Filed with the writ petition, is reproduced as under:

The Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967

(C.O.78)

In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, the President, after consultation with the Governor of the State of Uttar Pradesh, is pleased to make the following Order, namely:

The order may be called the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967

The tribes or tribal communities, or parts of, or groups within tribes or tribal communities specified in the Schedule to this Order, shall for the purposes of the Constitution of India, be deemed to be Scheduled Tribes in relation to the State of Uttar Pradesh so far as regard members resident in that State.

THE SCHEDULE

Bhotia

Buksa

Jannsari

Raji

Tharu

Published with the Ministry of Law Notice No. G.S.R. 960, dated the 24th June, 1967, Gazette of India, Extraordinary, 1967, Part II, Section (1), Page 311.

Aforesaid notification has got constitutional mandate and accordingly, Bhotia caste comes within scheduled tribe. Article 342 provides that the President with respect to any State, after consultation with the Governor, shall issue notification specifying the tribes or tribal communities or part of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State. Accordingly, the aforesaid proposition creates constitutional rights in favour of the petitioner to claim the benefit of Bhotia caste under the category of scheduled tribe.

Now, coming to the argument advanced by the respondents'' counsel that in view of the order dated 9.5.2007, the petitioner is not entitled to claim benefit of reservation under scheduled tribe category, seems to be misconceived argument. The Government order dated 9.5.2007 (contained in Annexure 2 to the writ petition) reveals that matter has been referred to the Government of India to exclude Bhotia, Jannsari and Raji castes since they are not available in the State of U.P. No decision has been taken by the Government of India in this regard. Whether the petitioner resides in State of U.P. or not and belongs to Bhotia caste or not, is a question of fact which may be looked into by the respondents and it is not for the Court but so far as the right of persons belonging to Bhotia community is concerned, it is well protected by the notification of the year 1967 (supra) and they may claim reservation as guaranteed (supra) belonging to scheduled tribes category. The letter dated 9.5.2007 is reproduced as under:

We are of the view that till notification of the year 1967 is operative, it has got force of law and being constitutional mandate, there is no option on the part of the respondents except to obey and provide reservation under Bhotia, Jannsari and Raji communities. The impugned order seems to have been passed on unfounded ground. The U.P. Public Service Commission has incorrectly interpreted the letter dated 9.5.2007 (supra) sent by the State of U.P. to Government of India. It is only the request to accept or reject it. Since prayer of the State Government of U.P. is still under consideration, the impugned order has been passed on unfounded ground and without application of mind.

In view of the above, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 26.5.2013 contained in Annexure No. 1 to the writ petition with all consequential benefit. Respondents shall reconsider the petitioner''s case for selection and appointment against available vacancies in accordance with Rules under ST category expeditiously say, within four months.

No orders as to costs.