Full Judgment Text
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PETITIONER:
KISHORILAL HANS
Vs.
RESPONDENT:
RAJA RAM SINGH & ORS.
DATE OF JUDGMENT30/11/1971
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
HEGDE, K.S.
CITATION:
1972 AIR 598 1972 SCR (2) 632
CITATOR INFO :
RF 1990 SC 991 (13)
ACT:
Constitution (Scheduled Castes) Order 1950 and Scheduled
Tribes Lists (Modification) Order 1956--Jatav caste not
mentioned as Scheduled caste in Datia District of Madhya
Pradesh--Election petition--Candidate belonging to Jatav
caste seeking to prove that Jatav caste is included in
chamar caste which is mentioned in order--Such inquiry not
permissible in view of Art. 341 of Constitution.
HEADNOTE:
Thee appellant was declared elected in February 1967 from
the Bhander Assembly constituency in District Datia of the
State of Madhya Pradesh a seat which was reserved for a
scheduled caste candidate. Under the Constitution
(Scheduled Castes) Order 1950 and Scheduled Tribes Lists
(Modification) Order 1956 the President of India had
declared in respect of District Datia the various castes
which were to be recognised as Scheduled castes. In items
thereof the castes mentioned were : ’Chamar, Ahirwar, Chamar
Mangam, Mochi and Raidas.’ The respondent, an unsuccessful
candidate at the said election filed an election petition
inter alia on the ground that the appellant, was a Jatav by
caste and therefore not a member of any of the scheduled
castes mentioned in the Presidential Order. The appellant
contended that the Jatav caste was a sub-caste of the caste
chamar mentioned in the order. The High Court decided
against the appellant who appealed to this Court.
HELD : From the evidence there was little room for doubt
that although at one time Jatavs might have been chamars but
they became a distinct caste or came to be recognised as a
separate caste several years ago. The fact that they were
shown separately as a caste in the Madhya Bharat and several
others states in the Scheduled Caste or Scheduled Tribes
Order (Amendment) Act 1956 shows that the existence of Jatav
caste was recognised. [642 C]
The evidence in the form of representations made by the
members of Jatav community including the returned candidate
himself apart from other oral evidence, established the
existence if Jatav caste even in Datia district but it so
happened that it was not included either in the Act of 1956
or the Presidential Order among the Scheduled Castes. [642
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E]
If the matter were res-integra there might have been a good
deal of difficulty in reconciling with the constitutional
provisions the scheme followed in the Presidential Orders by
which the same caste has been included in some districts of
the same State and excluded in other districts. This Court,
however in Bhaiyalal v. Balkishan Singh & Ors. made observa-
tions repelling the contention that under Art. 341 of the
Constitution the president was not authorised to limit the
notification to parts of a State. [644 C]
In Bhaiyalal’s case it was also held that the plea that
though the appellant was not a chamar as such he could claim
the same status by reason of the fact that he belonged to
the Dohar caste which is a sub-caste of the chamar caste,
could not be accepted. An inquiry of that kind was held not
be permissible having regard to the provision of Art. 341 of
the Constitution. The case of Basavalingappa v.
Munichinnappa was referred
633
to. Following these two decisions it must be held that the
returned candidate, in the present case, was not entitled to
establish that Jatav caste was the same as Chamar. [644 F-H]
the appeal must accordingly be dismissed.
Bhaiyalal v. Harikishan Singh, [1965] 2 S.C.R. 877 and
Basavalingappa v. Munichinnappa, [1965] 1 S.C.R. 316,
applied.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2123 and
2237 of 1969.
Appeals under S. 116-A of the Representation of the People
Act, 1951 from the judgment and, order dated August 29, 1965
of the Madhya Pradesh High Court, Indore Bench in Election
Petition No. 18 of 1967.
Rameshwar Nath, for the appellant (in C.A. No. 2123 of 1969)
and respondent No. 1 (in C.A. No. 2237 of 1969).
A. K. Sen, G. L. Sanghi and K. P. Gupta, for respondent No.
1 (in C.A. No. 2123 of 1969) and the appellant: (in C.A. No.
2237 of 1969).
The Judgment of the Court was delivered by
Grover, J. These are two cross,-,appeals from a judgment of
the Madhya Pradesh High Court. We shall give the facts of
C.A. No. 2123/69 which arises from an election petition
filed by the respondent Rajaram Singh an unsuccessful
candidate in the High Court under s. 81 of the
Representation of People Act 1951, hereinafter called the
’Act’, challenging the election of the appellant who was
declared duly elected in February 1967 from the Bhander
Assembly Constituency of the State of Madhya Pradesh-a seat
which was reserved for a scheduled caste candidate.
The last date for filing the nomination papers was January
20, 1967, the date of scrutiny was January 21, 1967. The
pool took place on February 20, 1967. The result of the
election was declared on February 21, 1967. The appellant
obtained 24,549 votes whereas respondent No. 1 obtained 8096
votes. A number of allegations were raised in the election
petition and as many as 12 issues were framed with a number
of sub-issues. On all the issues the allegations of
respondent No. 1 were negatived with the exception of issue
No. 1. That issue was as follows :-
(1) (a) Whether respondent No. 1 Shri
Kishorilal belongs to the Jatav caste as
alleged by the petitioner.
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(b) Whether, therefore, respondent No. 1
does not belong to the scheduled caste and,
therefore, does not possess the necessary
qualifications of a scheduled
634
caste candidate for the Bhander Assembly
Constituency in question which is a reserved
seat for scheduled caste candidate only, as
alleged by the petitioner ?
(c) Whether Jatav caste is one of the sub-
castes of Chamar as alleged by respondent No.
1 ?
(d) Assuming that ’Jatav’ is a separate
caste then whether ’Jatav’ is recorded as
scheduled caste for the purpose of Bhander
Assembly Constituency in question as alleged
by respondent No. 1 ?
(e) Whether, therefore, on this ground he
was entitled to contest the election as a
scheduled caste candidate from the
Bhander Assembly Constituency, although he is
a permanent resident of village Bargawan
within the Seondha Assembly Constituency in
which he is recorded as a voter as alleged by
him ?
The High Court found sub-issue (a) in the affirmative and
held that the appellant belonged to the ’Jatav’ caste. On
sub-issue (b) it was held that the appellant did not possess
the necessary qualifications and was, therefore, unqualified
to fill the @ in question. On sub-issue (c) the court was
of the opinion that no inquiry could be made into the
question whether the ’jatav’ caste, is one of the sub-castes
of Chamar. Sub-issue (d) was answered in the affirmative
and (e) in the negative.
The only question which now survives for consideration is
whether the High Court was right in holding that the
appellant was not a member of the scheduled caste and was,
therefore, disqualified to stand for a seat reserved for a
scheduled caste. We may refer to the pleadings of the
parties on the point. In the election petition it was
alleged in para 6 that the name of the appellant before us,
who will hereafter be referred to as the ..returned
candidate" was not entered in the electoral roll for
legislative assembly constituency no. 2 Seondha, district
Datia in part No. 81, village Bargawan on serial No. 154.
He was a permanent resident of that village within the
aforesaid assembly Constituency. The returned candidate
belonged to the ’Jatav’ caste which was no,, a scheduled
caste declared for the purpose of election for Datia
district. He had fraudulently cancelled his jatav caste and
represent himself to be a Chamar lie had stood a,, a
candidate for the Bhander Assembly Constitution. Under the
Constitution (Scheduled Castes) Order 1950 and the Scheduled
Caste and Scheduled Tribes Lists (Modification) Order 1956
the President of India had declared in respect of District
Datia the
635
various castes which were to be recognised as scheduled
caste. Item 3 thereof was as follows :-
"Chamar, Ahirwar, Chamar Mangam, Mochi or Riadas".
It was asserted that Jatav caste had not been recognised as
a scheduled caste by the President in the district of Datia
as the social level of development of that unity was of such
a high degree that it did not require any such protection or
recognition or privilege. It was further added that there
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were thousands of families of Jatavs in Datia district in
the erstwhile State of Vindya Pradesh but Jatav caste was
not recognised as a scheduled caste. In his written
statement the returned candidate admitted that his name was
entered as alleged in the election petition and that he was
a resident of village Bargawan, district Datia. It was
denied that he belonged to Jatav caste as alleged in the
petition. It was claimed that he belonged to the Chamar
caste and Jatav caste was one, of the sub-castes of Chamar.
It was denied that Chamar caste was not recognised as
scheduled caste for the purpose of election to the Bhander
Constituency. It was also denied that the returned
candidate did not fraudulently conceal his real Jatav caste
and represented himself to be a Chamar. Without prejudice
to what has been pleaded before us was claimed that even if
’Jatav’ was treated as a separate caste and not a sub-caste
of the Chamar caste ’Jatav’ was recorded as a scheduled
caste for the purpose of Bhander assembly constituency from
which the returned candidate contested the election. It was
immaterial, according to him, whether Jatav as a separate
caste was recorded or not in the Datia district in which his
name was entered in the electoral roll. Other assertions in
the election petition on the point were not admitted. It
was ultimately maintained that there was no difference
between Jatav and Chamar castes and it was reiterated that
Jatav was only a sub-caste of Chamar.
Accordingly to the Presidential Order Jatav was not one of
the castes mentioned in it so far as Datia district of the
Madhya Pradesh State was concerned in which the returned
candidate was enrolled as an elector. In the area
comprising the Bhander Constituency from where the returned
candidate stood for election Jatav was one of the castes
which was included in the aforesaid Order. But it is not
claimed, and rightly so. that fact could be of any avail to
the returned candidate. If he was a Jatav by caste and if
that caste did not find any mention in the Presidential
Order in the Datia district the returned candidate could not
be regarded as having the qualifications for offering
himself for election in a constituency reserved for a member
of the scheduled caste.
636
Before us it has been argued on behalf of the returned
candidate that he belonged to the Chamar caste which was
admittedly one of the castes included in the Order even for
Datia district. It is asserted that he was not a Jatav and
that certain section of the Chamars in that district was
anxious to be called by the name of Jatav because it had
given up the profession of making shoes and did- not wish to
be called Chamar since that word smacked of inferior status.
In other words, the caste to which the returned candidate
belonged was, in fact, the Chamar caste and it did not make
any difference if he along with several others from that
caste made attempts at various stages to be called by the
name of Jatav. The other contention that has been sought to
be pressed is that all the Jatavs in Datia district are in
fact Chamars ,and therefore the mention of the Chamar caste
was sufficient for the purpose of including them in that
caste and it was not necessary to mention Jatavs separately.
Thirdly it has been submitted that even on the assumption
that the returned candidate belonged to the Jatav caste he
could not be held to have been disqualified to fill in the
seat reserved for a scheduled caste keeping in view the
provisions of s. 5 of the Act.
The crucial question which must first be determined is
whether the returned candidate was a Chamar by caste or he
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belonged to the Jatav caste if there was such a caste in
existence in the Datia district. The High Court considered
the oral evidence and relied a good deal on some pamphlets
which had been issued by certain organizations of the Jatav
caste in which the returned candidate was an office-bearer.
Reference may be made, in particular, to three pamphlets
Exhs. P. 16, P. 17 and P. 18 which were printed and
published. These pamphlets related to Jatav Sammelans which
were held in certain places in tehsil Datia etc. In Exh. P.
16 the returned candidate was shown as one of the conveners;
in Exh. P. 17 he was shown as one of the conveners. In
Exh. P. 18 it was mentioned that the returned candidate,
who was the Mantri (Secretary) of the Jatav Sabha Datia was
also expected to attend the Jatav Sammelan Barchouli in
tehsil Bhander. As noticed by the High Court the substance
of these pamphlets Exhs. P. 16 and P. 17 was that a
deputation consisting of the representatives of the
Provincial Jatav Sabha under the leadership of Atamdas
President of that Sabha waited upon the Collector of Datia
district on January 12, 1961. One of the grievances which
was brought to the notice of the Collector was that some of
the officers and the clerical staff did not record the caste
of Jatav community as Jatav even though the members of the
said community told them that their caste was Jatav. The
Collector had issued an order to all his subordinates to
record Jatav. as the ,caste of the persons belonging to the
Jatav community. By these
637
pamphlets Jatavs were advised to record their true caste
i.e. ’Jatav’ in the Census operations which were to commence
in February 1961. Exh. p. 18 was a pamphlet. The substance
of which was that a big Sammelan of the Jatav community and
other depressed classes would be held on January 26, 1960
-at Mouza Barchouli in which various difficulties which were
being experienced by the Jatav community would be
considered. As mentioned earlier it was stated in Exh. P.
18 that the returned candidate who was described as the
Secretary of the Jatav Sabha, Datia was also expected to
attend that Sammelan. Another document Exh. P. 60 which
was a resolution passed at a Jatav Sammelan held at Tharet
on October 24, 1963 showed that a demand had been made that
scholarships should be given to the students belonging to
the Jatav community exactly in the same manner as such
scholarships were being awarded to students belonging to the
scheduled castes. The name of the person who is shown as
having seconded this resolution which was proposed by one
Lalu Ram Jatav is that of the returned candidate. Certain
criminal proceedings were started against- the returned
candidate in 1964. From the record of the criminal case it
appeared that in the personal bond Exh. P. 10 dated May 6,
1964 the returned candidate had given his caste as Jatav.
There were other similar documents i.e. Exh. P. 55 which
was a personal bond and the security bond Exh. P. 56.
According to the High Court all than documents from 1960 to
1964 showed that the returned candidate was a Jatav by caste
and in his capacity as Secretary of Jatav Sabha, district
Datia he organised various Jatav Sammelans to get the
grievances of the members of the Jatav caste redressed. In
none of these documents it was mentioned that he was a
Chamar nor was there the remotest indication to show that
these Sammelans had been organised by the returned candidate
in his capacity as a Chamar. The High Court referred to the
oral evidence also but it will be wholly futile to refer to
the entire evidence except the statement of the returned
candidate himself and of some of the material witnesses
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produced by both sides, if necessary.
There were certain Other documents which had been filed by
Hari Narain Ken P.W. 20 who was the General Secretary, Jatav
Sabha, Madhya Bharat and the then Madhya Pradesh since 1948.
It will be useful at this stage to refer to the original
Presidential Order and the changes which were made in it
subsequently. According to the Constitution (scheduled
Caste) Order 1950 which was Promulgated in. exercise of the
powers conferred by clause (1) of Art. 341 of the
Constitution soon after it came into force Jatavs were not
shown among the scheduled castes in Madhya Pradesh and
Madhya Bharat. Among the other castes Chamar was mentioned.
Similarly in the Constitution (scheduled Castes) Part C
States Order 1951 only Chamar was shown,
638
among the scheduled castes in Vindhya Pradesh. A Bill No. 8
of 1956 was introduced in the Lok Sabha which appeared in
Gazette Extra Ordinary of April 6, 1956. This Bill was to
provide for the inclusion in and exclusion from the list of
scheduled castes and of scheduled tribes of certain castes
and tribes. The entries proposed which are relevant for our
purposes in the then three States of Madhya Pradesh, Madhya
Bharat and Vindhya Pradesh were as follows
Madhya Pradesh
"Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami Satnami,
Surjyabanshi or Surjyaramnami."
Madhya Bharat
"Chamar, Bairwa, Bhambi, Jatav. Mochi, or Regar."
Vindhya Pradesh.
"Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas".
On September 25, 1956 the Scheduled Castes & Scheduled
Tribes Order’s Amendment Act 1956 received the assent of the
President. The Act followed the same scheme which was to be
found in the Bill. In other words in Vindhya Pradesh in
entry 3 apart from Chamar, Ahirwar, Chamar Mangam, Mochi or
Raidas were included. It is noteworthy that upto this stage
Jatav caste was not included in the erstwhile States of
Madhya Pradesh and Vindhya Pradesh but were included only in
Madhya Bharat, After the States Reorganisation Act came to
be enacted the Scheduled Castes and Scheduled Tribes List
(Modification) Order 1.956 was promulgated pursuant to s. 41
of the said Act. Madhya Bharat and Vindhya Pradesh ceased
to be. separate States and the territories of Madhya Bharat
with a few exceptions and Vindhya Pradesh became part of the
State of Madhya Pradesh. In the district of Bhind etc. in
item 9 Jatav was included in the entry beginning with
Chamar. However in several other districts Jatavs were not
included and in particular in the districts which formerly
formed part of Vindhya Pradesh including Datia.
It appears that when the Bill referred to before was
introduced in the Parliament prior to the enactment of the
States Reorganisation Act 1956 a memorial dated July 17,
1956 was sent by the President of the Jatav Sabha to the
Government of India. In that memorial Exh. P. 57 a protest
was made for not recognizing the Jatav caste as a separate
caste and a strong case was, made
639
out for recognizing Jatav as a distinct caste. It was
pointed out in that memorial that the Government of India,
prior to the coming into force of the Constitution, had
regarded Jatav as a depressed class, but the same had been
excluded from the list of scheduled castes in some States
i.e. Madhya Bharat, Bhopal and Madhya Pradesh etc. without
any rhyme or reason. It was further stated :
"Now an Amendment Bill of the Scheduled Castes
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which has been submitted by you in the Lok
Sabha on 6th April 1956, therein the Jatav
community has been illegal and unjustly
proposed to be included in other Scheduled
Castes with which we have no endogenously
connection. I have the honour to point out
here that Jatavs did never wish to leave the
fold of the Scheduled Castes. But we desire
to remain under a Separate Column as a
separate caste in the list of Scheduled
castes".
Among the demands set out in the memorial were the,
following (1) the Jatav caste should be included in the list
of scheduled caste in the States of Madhya Pradesh and
Vindhya Pradesh. It was added that in Vindhya Pradesh
Jatavs were included in the list in the Presidential Order
1950; but it was urged that they should be separately
mentioned and not grouped with the other castes. It was
pointed out that in the following States Jatavs were
included in the list of Scheduled castes but were grouped
with Chamar, Reghar or Mochi etc. and that they should be
separately mentioned as a scheduled caste :
"Madhya Bharat, Bhopal, Uttar Pradesh, Rajasthan, Ajmer,
Delhi."
It is apparent that repeated attempts were being made by the
representatives of the Jatav caste to have their caste
included in the list of Scheduled Castes wherever they were
not included and to have that caste separated from Chamar,
Regar or Mochi etc. and not be grouped with these castes in
those areas where they were so shown. It is obvious that
after the reorganisation of the States in 1956 when the
Scheduled Castes and Scheduled Tribes List (Modification)
Order 1956 was promulgated Jatavs were not included among
scheduled castes in the districts including Datia which
comprised the erstwhile State of Vindhya Pradesh. If the
case of the returned candidate had been, right from the
beginning, that whatever representations were made to which
he was a party the object was to get a certain section of
the Chamars who had started followed different avocations
designated by the name of Jatavs and included under that
name among the scheduled castes the position might have been
different; but all
640
the pamphlets etc. and the activities of the returned
candidate showed that he was a Jatav and that caste was
quite different from that of Chamars. Indeed no such case
was raised in the written statement and even in his own
statement the returned candidate did not make out such a
case. He started by saying in examination-in-chief that he
was a Chamar by caste but then he proceeded to say that
Jatav is a sub-caste of Chamar. He did not explain how he
came to be associated with the various activities of the
Jatav Organisation where his name was shown prominently as
one of the office-bearers, particularly with reference to
the branch of the Jatav Organisation in Datia. He denied in
cross-examination that he attended any Jatav Sammelan in
Pichhor tehsil. He admitted, however, that in Bhander
tehsil he visited Jatav Sammelan twice. On one occasion he
went to the Sammelan at Mouza Barcholi. It appears that he
did not have any clear idea about the caste to which he
belonged. The following questions and answers will show the
complete confusion in his own mind as to whether Jatavs and
Chamars formed one caste or whether Jatav was a sub-caste of
Chamar :-
" Q. I put it to you whether you are a ’Jatav Chamar’?
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A. I am a Chamar (Mai Chamar Hoon).
Q. Whether ’Jatav’ and ’Chamar’ is one and the same thing
?
A. Yes, Chamar and Jatav is one and the same caste.
Q. Whether ’Jatav’ is a sub-caste of ’Chamar’?
A. It is true that the ’Jatav’ is a sub-caste of ’Chamar’.
Q. Whether you are a Jatav or not ?
A. I am a Chamar.
I am not a Jatav. As a Jatav Chamar I did not organise any
Sammlan in Bhander and Pichhor tehsils. I did that as a
Chamar. Those Sammelans used to be known by the name of
’Jatav’ Sammelan".
The only attempt which appears to have been made to develop
a case that the Chamars of Datia district wanted to be
called Jatavs and so included in the list of scheduled was
in the cross-examination of Rajaram P.W. 23. The following
part of his cross-examination may be reproduced in this
connection :
"Aherwar, Dohar, Raidas and ’JATAV’ are not of
’CHAMAR’ caste. They are all separate castes.
It is
641
not true that because the word ’CHAMAR’ smacks
of inferiority complex, therefore they started
calling themselves ’JATAVS’.
Q. I put it to you that because the Chamars
prepare shoes and therefore, this is not liked
by people and on this account they to be
called ’JATAV’. What have you to say to this
?
A. This is not correct. CHAMARS do prepare
shoes, but Chamar is a different caste from
’JATAV"’.
In our judgment it will not be in accord with the correct
principles either of the law of pleadings or otherwise to
allow the returned candidate to now make out a case for
which no proper foundation was laid either in the written
statement or even in the evidence.
Coming back to the question whether the returned candidate
belonged to the Jatav or the Chamar caste it is difficult to
disagree with the High Court that he had failed to prove
that he was a Chamar and not a Jatav. It is true that right
from the beginning all the entries in the revenue records
relating to the castes of the ancestors of the returned
candidate including his close relations which have been
fully referred to by the- High Court showed that these
persons were described as belonging to the Chamar caste.
The High Court considered the weight of the evidence of
these entries and pointed out that the entries had
presumptive weight only and the same had been rebutted by
the other evidence and, in particular, the various
representations which were being made to the authorities
concerned that persons belonging to the Jatav community were
not being entered as Jatav but were being entered as Chamar.
The Collector had, from time to time, passed orders and
directed his subordinates to record the caste of these
people as Jatav, if they stated that to be their caste. All
this shows that in Datia district the members of the Jatav
caste in spite of their persistent assertion and claim that
they formed a case separate and distinct from that of
Chamars was not being entered in the official records by the
authorities concerned. It is somewhat difficult to accept
as was the evidence of some of the witnesses that Jatav and
Chamar were the same castes. Ved Prakash P.W. 19 on whom
reliance was placed on behalf of the returned candidate
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stated that Chamar caste and Jatav caste were one and the
same. The evidence of Sham Saxena P.W. 15 was to the same
effect. Harinarain Ken P.W. 20 stated that there was an All
India Jatav Sabha and he was the Secretary of the Madhya
Pradesh Jatav Sabha since 1948. He proved the memorandum to
which reference has already been made which was submitted on
behalf of the Jatav caste for recognising it as a
642
distinct caste. He was quite certain that Jatav caste did
not form part of the Chamar caste. The evidence of Dhani
Ram R.W. 1, who is a close relation of the returned
candidate, was that Jatav and Chamar was one and the same
caste. R.W. 11 an uncle of the returned candidate claimed
that he belonged to the Chamar caste but in cross-
examination stated that he was a Jatav Chamar. From the
entire evidence to which it is unnecessary to refer there
seems to be little room for doubt that although at one time
Jatavs might have been Chamars but they became a distinct
caste or came to be recognised as a separate caste several
years ago. The fact that they were shown separately as a
caste in the Madhya Bharat and several other States in the
Scheduled Caste and Scheduled Tribes Order (Amendment) Act
1956 shows that the existence of Jatav caste was recognised.
A caste, it is wellknown, cannot spring up or develop in a
short period of time. It is unnecessary to go into the
question of the origin of a caste but it cannot be gain said
that a caste must be in existence before it can be
recognised as such. The fact of recognition of Jatav caste
as a caste in the statutory provisions and Orders mentioned
be-fore though confined to certain States and parts of those
States cannot be ignored. It cannot, therefore, be said
that Jatav and Chamar was one and the same. The only
question is whether there was any Jatav caste in Datia
district. The evidence in the form of representations made
by the members of Jatav community including the returned
candidate himself apart from other oral evidence established
the existence of Jatav caste even in Datia district but it
so happened that it was not included either in the Act of
1956 or the Presidential Order among the scheduled castes.
This position appears to be highly anomalous. Ordinarily
if Jatav caste was included so far as the old State of
Madhya Bharat was concerned and was also included in the
districts which constituted the erstwhile State of Madhya
Bharat even after its merger in the Madhya Pradesh after the
States Reorganisation Act there seems to be no reason or
justification for excluding the Jatavs of Datia District.
Their exclusion apparently was due to the fact that in the
erstwhile State of Vindhya Pradesh of which Datia district
formed a part Jatav caste was not included in the list of
scheduled caste.
In order to find out why in the Presidential Order issued in
1950 pattern of which was followed in later statutory
provisions and Orders certain castes were recognised as
scheduled castes in other parts of the same State one has to
go back to the Government of India (Scheduled Caste) Order
1936. By certain provisions in the First, Fifth and Sixth
Schedules to the Government of India Act 1935, His Majesty
in Council was empowered to specify the caste, race or tribe
or parts of or groups within the
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caste, race or tribes which were to be treated as Scheduled
caste. Part 11 of the aforesaid Order of 1936 which was
issued in exercise of the power conferred by the aforesaid
provisions was as follows : -
" subject to the provisions of this Order, for
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the purposes of the First, Fifth and Sixth
Schedules to the Government of India Act,
1935, the castes, races or tribes, or parts of
or groups within castes, races or tribes,
specified in Parts I to IX of the Schedule to
this Order shall, in the Provinces to which
those Parts respectively relate, be deemed to
be scheduled castes so far as regards members
thereof resident in the localities specified
in relation to them respectively in those
Parts of that Schedule".
In the Schedule certain castes were mentioned as scheduled
caste for the whole of a particular Province or part
thereof. While issuing the Presidential Orders under Art.
341 of the Constitution the same pattern was adopted and the
scheme was to specify scheduled castes throughout a
particular State or the Union territory as well as parts of
that State or Union territory, as the case may be, in
relation to the locality in which the members of these
castes etc. were residing. This test of residence leads to
highly anomalous and unjust results which can be illustrated
by a simple example. If there are two brothers belonging to
Jatav caste who are equally qualified to be employed in a
particular service or post in respect of which reservation
is provided for the members of the scheduled caste, one
living in district A in the State of Madhya Pradesh can
avail of that benefit whereas the other who lives in an
adjoining district B for which that caste is not included in
the Order would be deprived of the benefit of that
reservation which is for the whole State even though there
may be no difference in the socioeconomic condition of the
caste to which the brothers belong in the districts where
they reside. Several other anomalies can arise because it
is only a member of a caste which is included in the
statutory provisions or the Orders mentioned before who can
take advantage of the benefits conferred by the
constitutional provisions. Article 341 of the Constitution
provides for specification of caste, race or tribe etc. for
the purpose of the Constitution in relation to that State or
Union territory, as the case may be. In the Twelfth Report
of the Commission for Scheduled Castes and Scheduled Tribes
1962-63 it has been pointed out at page 12 that a person may
belong to a caste or tribe declared to be a scheduled caste
in his originating State but who may have been residing for
a long time in another State (say, for the sake of service
or business) where hi,; caste/
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tribe is not recognised as a Scheduled Caste/Tribe. In the
relevant statutory provisions and Orders such a person would
be denied the benefits under the Constitution even though he
may actually continue to suffer from the effects of the
disabilities resulting from the practice of untouchability.
The Commissioner suggested that they should be treated as
eligible for benefits made available to the scheduled
castes/tribes in the home State etc.
If the matter were res-integra we would have felt a good
deal of difficulty in reconciling with the constitutional
provisions the scheme followed in the statute and the Orders
concerned by which the same caste has been included in some
districts of the same State and excluded in the other
districts. This Court, however, has in Bhaiyalal v.
Harikishan Singh & others(1) made observations repelling the
contention that under Art. 341 of the Constitution the
President was not authorised to limit the notification to
parts of a State. The reason given was that while
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specifying caste, race or tribe the President may well come
to the conclusion that not the whole caste, race or tribe
but part of or groups within them should be specified. This
would be so where the President is satisfied that the
examination of the social and educational backwardness of
the race, caste or tribe justifies such specification. It
would appear from the Tenth Report of the Commissioner for
Scheduled Castes and Scheduled Tribes 1960-1961 (page 22)
that two factors have been mainly taken into account for
including a particular caste, race or tribe in the list of
scheduled castes and scheduled tribes i.e. socioeconomic
conditions and population figures.
In Bhaiyalal’s case(1) the appellant’s election had been
challenged on the ground that he belonged to the Dohar caste
which was not recognised as a scheduled caste for the
district in question and so his declaration that he belonged
to the Chamar caste which was a Scheduled Caste was
improperly and illegally accepted by the Returning Officer.
It was held that the plea that though the appellant was not
a Chamar as such he could claim the same status by reason of
the fact that he belonged to Dohar caste which is a sub-
caste of the Chamar caste could not be accepted. An inquiry
of that kind would not be permissible having regard to the
provisions contained in Art. 341 of the Constitution. The
case of Basavalingappa v. Munichinnappa(2) was referred to.
In that case it was laid down that generally speaking it was
not open to any person to lead evidence to establish that
his caste includes or is the same as another caste which is
notified in the Order. Following these two decisions it
must be held that the turned candidate, in the present case,
was not entitled to estab-
(1) [1965] 2 S.C.R. 877.
(2) [1965] I S.C.R. 316.
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lish that Jatav caste was the same as Chamar. In this view
of the matter nothing else survives for consideration or
decision.
In the result the appeal (C.A. 2123/69) fails and is
dismissed. The other appeal (C.A. 2237/69) not having been
pressed is also dismissed. Taking into consideration the
entire circumstances we leave the parties to bear their own
costs in this Court.
G.C
Appeals dismissed.
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