C/SCA/6037/2014 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 6037 of 2014

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THAKOR BAKULKUMAR MAYURKANT....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MS VIDITA D JAYSWAL, ADVOCATE for the Petitioner(s) No. 1
MR VANDAN BAXI, AGP for the Respondent(s) No. 2
MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL OF INDIA for the
Respondent(s) No. 1-3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.

VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 07/11/2014

ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY

MANOHAR SAHAI)

1. We have heard Ms.Vidita D.Jaiswal,

learned counsel for the petitioner, Mr.Vandan
Baxi, learned AGP for respondent No.2 and
Mr.Devang Vyas, learned Assistant Solicitor
General of India for respondent Nos.1 and 3.

2. This petition has been filed by the

petitioner challenging the Scheduled Castes and

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Scheduled Tribes (Second Amendment) Act 2002 to

the extent that it excludes Vaghri and Koli
community residing within district of Kutch of
State of Gujarat from the Constitution (Scheduled
Tribes) Order 1950.

3. It is not disputed by learned counsel

for the petitioner that validity of the
Scheduled Castes and Scheduled Tribes (Second
Amendment) Act 2002 had been challenged by Samast
Gujarat Rajya Mochi Samaj Vs Union of India
through Secretary and others, reported in 2004(2)
GLH 6 wherein validity of the Amendment Act has
been upheld and thereafter validity of the Act
has also been upheld by the Apex Court in Shree
Surat Valsad Jilla K.M.G.Parishad Vs Union of
India and others reported in (2007) 5 SCC 360
wherein in paragraphs 9, 10 and 11, it has been
held that :

“9. The Constitution provides for

declaration of certain castes and tribes
as Scheduled Castes and Scheduled Tribes
in terms of Articles 341 and 342 of the
Constitution of India. The object of the
said provisions is to provide for grant
of protection to the backward class of
citizens who are specified in the
Scheduled Castes Order and Scheduled
Tribes Order having regard to the
economic and educational backwardness
wherefrom they suffer. The President of
India alone in terms of Article 341(1)
of the Constitution of India is
authorised to issue an appropriate
notification therefor. The Constitution

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(Scheduled Castes) Order, 1950 made in

terms of Article 341(1) is exhaustive.

10. It is, therefore, not for the court

to render its opinion as to whether the
President was correct in confining
inclusion of the caste Mochi within a
particular area.

11. We, therefore, agree with the High

Court that no case has been made out for
declaring the impugned legislation as
unconstitutional.”

4. The Apex Court in Palghat Jilla Thandan

Samudhaya Samrakshna Samithi and another Vs State
of Kerala and another, reported in (1994) 1 SCC
359 has held that it is not for the State
Government or for the Supreme Court to enquire
into the correctness of what is stated in the
report that has been made thereon or to utilise
the report to, in effect, modify the Scheduled
Castes Order. In paragraph 20, it is observed as
under.

“20. Learned counsel for the State

relied upon the decision in Bhaiya Ram
Munda v. Anirudh Patar referred to in
paragraph 15 of the judgment in Srish
Kumar Choudhury case for the view taken
there was that evidence was admissible
for the purpose of showing what an entry
in the Presidential Order was intended
to mean. In paragraphs 8, 9, 10 and 11
of the judgment in Srish Kumar Choudhury
case the Constitution Bench judgments
referred to above are discussed, as also
two other judgments taking the same
view. Then, in paragraph 14, the

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judgments of this Court in the case of

Dina v. Narayan Singh and Bhaiya Ram
Munda v. Anirudh Patar are referred to
and it is stated that both were rendered
by the same Bench of two learned Judges.
Paragraph 14 goes on to set out the
substance of the decision in Dina case
and paragraph 15 sets out the substance
of the decision in Bhaiya Ram case. In
paragraph 16 it is said, “These
authorities clearly indicate, therefore,
that the entries in the Presidential
Order have to be taken as final and the
scope of enquiry and admissibility of
evidence is confined within the
limitations indicated. It is, however,
not open to the court to make any
addition or substraction from the
Presidential Order”. There is,
therefore, no doubt that the Court in
Srish Kumar Choudhury case accepted and
followed, as it was bound to do, the
Constitution Bench judgments and not the
two-Judge judgments in the Dina and
Bhaiya Ram Munda cases.”

5. In view of the above clear position, it

is not for the Court to render its opinion as to
whether the President was correct in confining
inclusion of the caste Mochi within a particular
area and the High Court cannot declare the
impugned legislation as unconstitutional by
issuing a writ of mandamus. As no mandamus can be
issued to the President of India for inclusion or
exclusion of any caste since by the Scheduled
Castes and Scheduled Tribes (Second Amendment)
Act 2002, Vaghri, Parghi and Koli communities
residing within district of Kachchh, State of

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Gujarat had been excluded in the category of

Scheduled Tribes. In our considered opinion, no
mandamus can be issued directing the President of
India to include Vaghri, Parghi and Koli
communities to be included in Scheduled Tribes
residing within district of Kachchh, State of
Gujarat.

6. Therefore, it is clear from the

aforesaid decisions that it is not open for the
Court to make any addition or substraction from
the Presidential Order nor a writ of mandamus can
be issued to the President of India.

7. For the aforesaid reasons, this petition

is devoid of any merit and the same deserves to
be dismissed. This petition is accordingly
dismissed. Notice is discharged. There shall be
no order as to costs.

(V.M.SAHAI, ACJ.)

(R.P.DHOLARIA,J.)
pathan

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