63~ KJ,.sHORILAL HANS v. RAJA RAM SINGH & ORS. November 30, 1971 (K. S. HEGDE AND A. N. GROVER, JJ.] Co11stitutio11 (Sched11led Cas1es) Order 1950 and Scheduled Tribes Lim (Modificaiion) Order 1956–Jatav casle not mentioned as Scheduled casle in Dalia Districl of Madhya Pradesh-Election petition-Candidate belonging to Jatav caste-seeking to prove that Jatav caste is included in chamar caste lvhiclf Is mentioned in order-Such inquiry not permissible in view of :A.rt. 341 of Constitution.
The appellant was declared elected in February 1967 from the · Bhander Assembly constituency in District Dat.ia of the State of Madhya Pradesh-a seat which was reserved for a scheduled
caste candidate. Under the Constitution (S\:heduled 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 item 3 thereof the castes mentioned were : ·Chama\", Ahir\\o·ar, Chumar Mangam, Machi .and R'3idas.' The respon- dent. an unsuccessful candidate at the said election filed an election peti~ tion inter alia on the ground that the appellant, \Vas 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-easte of the caste chamar mentioned in the order. The High Court 'decided· against the appellant who appealed to this Court. HELD : From the eviJence there was little room fo" doubt that al· •hough at one tilnc Jatavs might have been cban1ars but they became a distinct caste or came to be rccognjsed as a separate caste several years ago. The fact that thev were shown separately as a caste in the Madhya Bharat and several others states in the Scheduled Caste or Scheduled Trib.:s Order (Amcndn1cnt) Act J 956 sho\vs that the existence of Jatav caste \vas recognised.
f6-r~ C] The evidence in the- forn1 of rcprcs..:ntations nu1de by the 1nc1nbcrs of Jatav community including the .. returned candidate hin1sclf apart fron1 UJll?G U! uaAa O}St?:> AUlP.f J.O ;:lJU:llS[XQ OtJl paqsnqeJSJ 'a:>U~P!A=> {CJO .I:>410 district but it so hoppened that it was not included either in the Act of 1956 or the Presidential Order among the Scheduled Caste,. [642 EJ If the matter \Vere- res-integra there might have been a goo<l deal of
difficulty in reconciJin~ with the constitutional provisions the schcn1c folloYled in the Presidential Orders by which the sa1ne caste has been jn- cluded in son1c districts of the san1c State andi excluded in other districts. This C:ourt, how~ver in Bhaiyalal v. Balkishan SinC?h & Ors. made observa- tion~ rcpelEng the contention that under Art. 341 of the Constitution th~ Pl'~si<lcnt \Va'> not authorised to limit the notification to parts of a State. [644 Cl
Jn Bhaiyala/'s case it was also hdd that the plea that though the appel· tant was not a char.~ .. 1r as such he could claiin the same status by reason of the fact that he bclon~cd to the Dohar caste which is a sub-caste of the chamar caste, could not be accepted.
An inquiry of that kind v.·as held not he permissible having- rcgnrd to the provision of Art. 341 of the Con- situation. The case of Basavalingappa v. M1111ichi1111appa \Vas referred
c f c K!SHORILAL v. RAJA RAM (Grorer, J.) to. folloY..ing these two decisions it !11ust be held _that the returned candi- date, in the present case, was not entitled to establtsh that J:1tav caste was rhe same as C'hamar. (644 F-H]
The appeal nlust accordingly be dismissed. Bhaiya/al v_ Harikislzan Singh, ~1965] :! S.C.R. 877 and Basaralin- gappa v . • '>frrnicliimrappa, [1965] I S.C.R. 316. applied. C1v1L APPELLATE JURISD!CTio:-< : Civil Appea's Nos. 2123
,md 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 I'_radesh 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 <:;.A. No. 2237 of 1969). A. K. Sen, G. L. Sanghi and K. P. Gupt'a, for respondent No. I (in C.A. No. 2123 of 1969) and the appellant (in C.A. No. 2237 of 1969).
II 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 tile 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 I 95 l. hereinafter called the 'Act', challenging the election of the appel- lant who was declared duly elected in February 1967 from the Bhander Assembly Constituency of the State of Madhya Pra-
desh-a seat which was reserved 'for a scheduled caste candidate. The last date for filing the nomination papers was January ~O. 1967, the date of scrutiny was January 21. 1967. The pool
took. place or\ February 20. 1967. The result of the election was declared on February 21, 1967. The appellant obtained 24,5.l9 votes whereas respondent No. 1 ol:ita(ned 8096 votes.
A num- ber of allegations were raised in the election petition and as many as I 2 issues were framed with a number of sub-issues. On all the issues the allegations of respondent No. I were negatived with the exception of issue No. I.
That issue was as follows :- ( 1) (a) Whether respondent No. l Shri Kishorilal helongs to the Jatav caste as :.illeged by the petitioner. ( b) Whether. therefore. respondent No. 1 does not
hclong to the scheduled caste and, therefore does not possess the necessary qualifications of a 'scheduled 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 thll 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 seat 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 whe.ther the High Court was right in holding that the appellant was not a member of the scheduled caste and was, therefore, dis- qualified 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 Dalia in part No. 81, village Bargawan on serial No. 154.
He was a per- manent resident of that village within the aforesaid assembly Constituency. The returned candidate belonged to the 'Jatav' caste which was not a scheduled caste declared for the purpose of election for Datia district.
He had fraudulently concealed his jatav caste and represent himself to be a Chamar he had stood as a candidate for the Bhander Assembly Constituency. Under the Constitution (Scheduled Ca~tes) Order 1950 and the Scheduled Caste and Scheduled Tribes Lists (Modification) Order 1956 the President of India had declared in respect of District Daria the c
c KISHORILAL v. RAJA RAM (Grover, J.) 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 community was of such a high degree that it did not require any such protection or recognition or privilege.
It was further added that there were thousands of families of Jatavs in Datia district in the erstwhile State of \'indya Pradesh but Jatav caste was not recognised as a schedul- ed 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 J atav caste as alleged i11 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 fraudu- lently 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 hinl, whether Jatav as a separate caste was recorded or not in the Dalia 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 ultinlately maintained that there was no difference between Jatav and Chamar castes and it was reiterated that Jatav was only a sub- caste of Chamar.
According to the Presidential Order Jatav was not one of the castes mentioned in it so far as Dalia district of the Madhya Pradesh State was concerned in which the returned candidate was enrolled as an elector. In the area comprising the Bhander Cons- tituency 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 that fact could be of lfny avail, to the returned candidate. If he was a .fatav 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 constituenc,· reserved for a member of the scheduled caste.
~36 Before us it has been argued on behalf of the returned candi- date 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 J atav.
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 neces- sary to m~ntion Jatavs separately. Titlrdly it has been sub- mitted that even on the assumption that the retumed candidate belonged to the Jatav caste he could not be hdd to have been dis- qualified to fill in the seat reserved for a scheduled caste keeping in view the provisions of s. 5 of the Act.
c The: crucial question which must first be determined is whether the returned candidate was a Chamar by caste or he belonged to the Jatav caste if there was such a caste in existence in the Dalia district.
The High Court considered the oral evidence and relied a good deal on some pamphlets which had been issued by certain organisations 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 Sanunelans which were held in certain places in tehsil Dalia etc.
In Exh. P. 16 the returned candidate wa~ shown as one of the conveners: in Exh. P. 17 he was shown as one of the convene:S. In Exh. P. 18 it was mentioned that the returned candidate, who was the Mantri (Secretary) of the Jatav Sabha Dalia 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 bad issued an order to all his subordinates to record Jatav as the caste of the persons belonging to the Jatav community. By these KISHORILAL v. RAJA RAM (Grover,!.)
pamphlets Jatavs were adv~sed to ~ecord their true cas~ i.e. 'Jatav' in the Census operat10ns which were to commence w Feb- bruary 1961. Exh. p. 18 was a pamphlet. The sub_stance of which was that a big Sammelan of the Jatav commumty and other
depressed classes would be held on January 26, 1960. at Mouza Barchouli in which various difficulties which were bemg expe- rienced by the Jatav community would be considered. As m~
tioned earlier it was stated in Exh. P. 18 that the returned candi- date 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 c been made that scholarships should be given to the students belonging to the J atav 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 per- sonal bond Exh. P. 10 dated May 6, 1964 the returned candidate had given his caste as Jatav.
There were other similar docu- ments i.e. Exh. P. 55 which was a personal bond and the security OOnd Ex1L P. 56. According to the.High Court all these docu- ments from I 91JO 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 tl!at tl!ese Samme- lans had been organised by the returned candidate in his capacity as a Chamar.
The High Court referred t') the oral evidence also but it will be wholly futile to refer to the entire evidence except the statement of tl!e returned candidate himself and of some of the material witnesses produced by both sides, if necessary. !here .were certain otl!er documents which had been filed by J:Jan Naram 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.
Ac~ording 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 (SChedul- ed Castes) Part C States Order 1951 only Chamar was shown
10-L643SupCl/72 (1972) 2 S.C.R. 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 sche- duled castes and of scheduled tribes of certain castes and tribes. The entries proposed which are relevant for our purposes in the then three Sfates of Madhya Pradesh, Madhya Bharat and Vindhya Pradesh were as follows :
Madhya Pradesh "Chamar, Chamari, Mochi, Nona, Rohidas, Ram- nami Satnami, Surjyabanshi or Surjyaramnami." Madhya Bharat "Chamar, Bairwa, Bhambi, Jatav, Mocbi, or l<.egar." Virulhya 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 Presi- dent.
The Act followed the same scheme which was to be found in the Bill. In ()!her words in Vindhya Pradesh in entry 3 apart from Chamar, Abirwar, 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 1956 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 excep- tions and Vindhya Pradesh became part of the State of Madhya Pradesh. In the district of Bhind etc. in item 9 Jatav was includ-
ed 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 includ- ing I>atia.
It appears that when the Bill referred to before was introduc- ed in the Parliament prior to the enactment of the States Reorga- nisation 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 recognis- ing the Jatav caste as a separa~ caste and a strong case was niade ll
c c KISHORILAL v. RAJA RAM (Grover, J.) out for recognising Jatirv as a distipct caste. It was pointed out in that memorial that the Government of India, prior ·to the com- ing into force of the Constitution, had regarded J atav as a de- pressed 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 which has been submitted by you in the Lok Sabha on 6th April 1956, therein the Jatav community has been illegaly and unjustly proposed to be included in other
Scheduled Castes with which we have no endogamous connection. I have the honour to point out here that J a ta vs 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 sepa- rately mentioned as a scheduled caste :
"Madhya Bharat, Bhopal, Uttar Pnidesh, 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 thev 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
includincr Dalia 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 Cha- mars who had started followed different avocations designated by the name of Jatavs and included under that name among the scheduled castes tl1e position might have been different; but all 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 examina- tioncin-chief that he was a Chamar by caste but then he pro- ceeded 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 J atav 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 Sam-
melan 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'? A. I am a Chamar (Mai Chamar Hoon). Q. Whether 'Jatav' and 'Chamar' is one and the c same thing ? A. Yes, Chamar and Jatav is one and
the same caste. Q. Whether 'Jatav' is a sub-caste of 'Chaniar' ? 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 Sammelan m 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 deve-
lop 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- examinatiO!I of Rajaram P.W. 23. The following part of his
cross-exammation may be reproduced in this connection : "Aber.var, Dohar, Raidas and 'JATAV' are not of 'CHAMAR' caste. They are all separate castes. It is c KISHORILAL v. RAJA RAM (Grover, I.)
not true that because the word 'CHAMAR' smacks of inferiority complex, therefore they started calling them- selves 'JATAVS'. Q. I put it to you that because the Chamars pre- pare ~hoes and therefore, this is not liked by people and
on this account they to be called 'JATAV'. What have you to sa_y to this ? A. This is not correct. CHAMARS do prepare shoes, but Chamar is a different caste from 'JATA V' ". In ou~ judgment it will not be . in accord with the correct princi- ples either of the law of pleadmgs or otherwise to allow the returne~ candid at~ to. now make ou.t a case for which no proper foundat10n was laid either m 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 dis- agree 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 begin- ning all the entries in the revenue records relating to the castes of the ancestors of the returned candidate including his close rela- tions 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 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 distinct caste. He was quite certain that Jatav caste did not fonu
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 well- known, 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 before 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 fonu of representations made by the members· of Jatav commu- nity 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 ih the Act of 1956 or the Presidential Order among the scheduled castes.
This position appears to be highly anomalous. Ordina- rily 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 certam castes were recognised as scheduled castes in other parts of the sam~ State one has to go back to the Govem- n!e_nt o~ India '.Scheclyler.1 Caste) Order 1936.
By certain pro- v1s1ons m the First, Fifth <md Sixth Schedules to the Government of I'.'dia Act 1935, His Majesty in Council was empowered to specify the caste, race or tribe or parts of or groups within the c
c K!SHORILAL v. RAJA RAM (Grover, /.) caste, race or tribes which were to be treated as Scheduled caste. Part II of the aforesaid Order of 1936 which was issued in exer- cise of the power conferred by the aforesaid provisions was as follows:-
"subject to the provisions of this Order, for 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 res- pectively relate, be deemed to be scheduled castes !O far as regards members thereof resident in the localities
specified in relation to them respective! y in those Parts of that Schedule". In the Schedule certain castes were mentioned as sc,heduled caste for the wholt 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 terri- tory 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 the~e 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 mem- bers 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 S!ate even though there may be no difference in the socio-economic 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 ca.ste which is included in the statutory provisions or the Orders mentioned before who can take advantage of the benefits con- ferred by the constitutional provisions.
Article 341 of the Cons- titution provides for specification of caste, race or tribe etc. for the purpose of the Constitution in relation to that State or UniQ.1 territory, as the ca1e may be.
In the Twelf•h R ~port of the Com- mission 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 oi service or business) where his caste/ (1972] 2 S.C.R
tribe is not recognised as a Scheduled Caste/Tribe. In the rele- vant 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 observa- tions repelling the contention that under Art. 341 of the Consti- tution the President was not authorised to limit the notification to parts of a State.
The reason given was that while specifying caste, race or tribe the President may well come to the conclusion that not the whole ct1ste, race or tribe but part of or groups with- in them should be specified.
This would be so where the Presi- dent 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 anci Scheduled Tribes 1960-1961 (page 22) that two factors have been mainly taken into acco;mt for including a particular caste, race or tribe in the ljst of scheduled castes and scheduled tribes i.e. socio-economic conditions and population figures.
In Bhaiyalal's case(1) the appellant's election had been chal- lenged 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 hi~ declaration that he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally ac- cepted by the Returning Officer. It was held that the plea that though the appe!Jant 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 ac- cepted. 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 ca£e it was laid down thiit generally speaking it was not open to any person to lead evidence to establish that his caste in- cludes or is the same as another caste which is notified in the Order.
Following these two decisions it must be held that the eturned candidate, in the present case, was not entitled to .estab- (1) [1965] 2 S.C.R. 877. (2) [1965] l S.C.R. 316. c KISHORILAL v. RAJA RAM (Grover, J.)
lish that Jatav caste was the >aJne as Chamar. In this view of tll(! matter nothing else survives for consideration or decision. In the result the appeal (C.A. 2123/69) fails and is dismiss- ed.
The other appeal (C.A. 2237 /69) not having been pressed p is also dismissed. Taking into consideration the entire circums- tances we leave the parties to bear their own costs in this Court. G.C.
Appeals dismissed.