Sunil Ambwani, J. - (1.) THIS second review/recall application filed by the Director, State Shaikshik Anusandhan and Training Parishad, Uttar Pradesh, Lucknow seeks to review/recall the judgment dated 14.7.2004 by which the Court held that so far as Special BTC Course 2004 is concerned, the petitioners belonging to 'Bhar' Tribe shall be entitled to be treated as belonging to Scheduled Tribe for the purposes of training, and thereafter if they succeed in the examination, they will be entitled to be considered, in the category of Other Backward Class, for the purposes of employment as Asstt. Teacher in primary schools. A further direction was issued that the petitioner shall be treated as belonging to Scheduled Tribe, subject to verification of his caste certificate, and that his candidature shall be reconsidered along with the Scheduled Tribe categories. In case he successfully competes the training and the examination, he shall be placed in the category of Other Backward Class for appointment.
(2.) THE applicant had earlier filed a review application and thereafter filed a Special Appeal No. 66 of 2006 against the judgment dated 14.7.2004. THE special appeal was withdrawn to pursue the review petition. THE review application was dismissed on 8.8.2006 on the ground that no liberty was sought from the appellate Court to pursue the review petition. THE applicant again filed a Special Appeal No. 940 of 2006 against the judgment and order dated 8.8.2006 as well as the order dated 14.7.2004. In the Special Appeal the order by which the review petition was decided was set aside and the matter was remanded for fresh consideration of the review petition. THE order reads as follows: "Our order is to be read in the context of the impugned order dated 8.8.2006. If an appeal is withdrawn without liberty to file afresh, it stops only a second appeal from being filed on principles similar to those applicable to suits and applications. In regard to an appealable order, a review application, properly so called under Order 47 can be filed only if the appeal has not been filed. In this case, no such appeal had been filed before the filing of the review application took place. THE appeal which had been filed subsequently was withdrawn on the ground that the review application was intended to be pressed. Thus no legal bar remained to its hearing and entertainment. In any event, an application called a review application might not necessarily be a review application properly so called but it might only be an application for rehearing in the ends of justice and the jurisdiction for entertaining that is retained by the Court at all times in its inherent powers. In the second type of review application, the problems mentioned in the impugned order do not arise, in any case. On these grounds, the impugned order is set aside; the matter is remanded to the Hon'ble single Judge for a fresh consideration of the review petition." The review application was listed on more than one occasions. Shri K.S. Kushwaha, learned counsel appearing for the applicant did not, however, appear to press the application. The order sheet witnessing the absence of Shri K.S. Kushwaha, the Standing Counsel reads as follows: "7.11.2008 Learned Standing Counsel does not have full record of the case. Let the matter be listed again in second week of December, 2008. 8.12.2008 The review application filed by the State Government is still pending. Learned Standing Counsel states that the matter will be argued by Shri K.S. Kushwaha. List in the next cause list. The Standing Counsel will inform Shri K.S. Kushwaha. The matter shall not be adjourned on that date. 6.2.2009 As prayed, put up on Monday. 9.2.2009 Put up on Thursday as first case. 12.2.2009 Put up tomorrow. 13.2.2009 Once again a mention has been made that Shri K.S. Kushwaha is busy in some other Court. This case has been adjourned on several occasions. It is apparent that the counsel for the State Government is only interested in adjournments and is not willing to cooperate in the disposal of this matter. Put up on Monday. The case will not be adjourned on that date. 16.2.2009 Inspite of repeated opportunities Shri K.S. Kushwaha has again not appeared in the Court to argue the matter. After three adjournments it was made clear that the matter shall not be adjourned. The review petition of the State has come up for hearing. I have heard Shri L.D. Rajbhar, learned counsel appearing for the petitioner, who has opposed the review petition and has also filed written arguments. The judgment in review petition is reserved. It will be open to Shri K.S. Kushwaha to file written arguments within a week." Shri K.S. Kushwaha has not cared to file written arguments as well.
(3.) SHRI L.D. Rajbhar, the counsel for the petitioner has filed his written arguments stating that there is no error apparent on the face of the record in the judgment dated 14.7.2004. He submits that review, should not be heard, as an appeal in disguise and has relied upon Parsion Devi and others v. Sumitri Devi and others, JT 1997 (8) SC 480. He would further submit that the question whether the 'Bhar' Tribe is Scheduled Tribe has been considered and decided in State of Maharashtra v. Milind and others, JT 2000 (Suppl.3) SC 213. It is contended in the review petition that entire basis of the judgment is a Government Order dated 15.5.1961 in which 'Bhar' Tribe was declared as Scheduled Tribe for the purposes of educational, economic and social benefits. The Government Order dated 12.5.1961 provides that initially through Criminal Tribe Act, 1971 some of the communities were notified as criminal tribes. The Act was repealed in 1951. By Government Order dated 6.9.1985 two lists of OBC was published. In first list 15 communities and in second list 59 communities were enlisted. The first list was entitled for preference in the matter of recruitment in public service. The communities listed in the second list were entitled to get facilities of the schemes sponsored by the State Government. Both the lists were amalgamated by Government Order dated 17.9.1958 for the purposes of preferential treatment in recruitment of public services and grant of educational and other facilities, which have been defined in the Government Order and which include grant of stipend, non-recurring assistance for books, grant of development of agriculture, cottage industries, housing etc. Bhar community was placed at SI. No. 7 in the list. By another Government Order dated 12.7.1959 some of the denotified tribes were separated from the OBC and were designated as Scheduled Castes. In Government Order dated 12.5.1961 an individual list was sponsored in connection with denotified tribe but name of 18 communities declared as Scheduled Castes were included in this list. The 'Bhar' Community was enlisted at SI. No. 2 in the list of denotified tribes. It is contended that Bhar Community was never declared as Scheduled Tribe and is still enlisted as community in OBC in Government Order dated 12.5.1961. The State Government later realized that due to bifurcation of 19 communities from OBC they have been deprived from certain facilities and therefore Government Order dated 26.3.1962 was issued again including them in the list of OBC. It is contended that in the Government Order dated 10.7.1986 'Bhutia' and 'Kori' communities were delisted from OBC list. Bhutia community was included in Scheduled Tribe and Kori was included in the Scheduled Castes. Bhar community was placed in the said list of OBC categories at SI.No. 7. The Government Orders were issued, whereby areas in which said communities were residing was extended. By Government Order dated 28.11.1992 'Bhar' Community was placed at SI.No. 2 and that by Government Order dated 22.4.1994, 18 communities, which were delisted from OBC were permitted to get the said facilities. Another notification was issued denotifying Vimukt Jatis. By Government Order dated 17.10.1999 the District Magistrate and the Commissioner were directed to issue caste certificate to these persons as members of Vimukt Jatis to give facilities to the members of such communities under a scheme sponsored by the State Government from time to time. This, however, did not give them any benefit to be treated as Scheduled Tribe. It is contended that the entire basis of the judgment, therefore, requires reconsideration.;