D. Basu, J. - (1.) - This Rule is directed against the-charge-sheet at Annexure B to the petition and the finding of the Enquiry Committee on that charge which is at annexure E and the show-cause notice upon that finding which is at annexure F to the petition. By the show-cause notice dated 14-1-63 the petitioner had been asked to show cause why he should not be dismissed from service. The petitioner has come to Court at this stage.
(2.) On behalf of the petitioner, Mr. Chakravarti has taken a number of grounds; for instance, that under Article 342 of the Constitution it is not competent for the President to declare a particular tribe to be a 'scheduled tribe' in relation to a portion of a particular State as distinguished from the State as a whole. It is, however, unnecessary to enter into this constitutional question; inasmuch as the petitioner is bound to succeed on another non-constitutional issue.
(3.) The charge against the petitioner was that he had made a misstatement in his application dated 14-12-1954, submitted to the Railway Service Commission for appointment to the post of a Ticket Collector, declaring himself to be a member of a scheduled tribe community which he was not. If we look at the form of the application which is at annexure A, it is evident at once that he has not made any false statement, inasmuch as the relevant entry in the application form is altogether vague and consisted of three alternatives. It would be profitable to reproduce that particular item 7 (c) - "Are you a member of the scheduled caste or of the scheduled tribal and Aboriginal Communities". The petitioners answer to this question was Yes. The next sentence is - "If so, mention the caste or community". To this, the answer of the petitioner was, Gond. There is no doubt that the petitioner is a member of the 'aboriginal community of Gond. The trouble arose from the fact that the Gond community i3 not declared to be a scheduled tribe in the Gazipur district of U. P. in the relevant Scheduled Tribes Order, which mentions the Gond community as a scheduled tribe only in the district of Mirzapur in the U. P. From this point of view it is evident that the petitioner having been born within the district of Gazipur, could not declare himself to be a scheduled tribe, within the meaning of the Scheduled Tribes Order issued under Article 342 of the Constitution. But the question he wee asked to answer was not merely whether be wa3 a member of the scheduled caste or of a scheduled tribe but also whether he was a member of an aboriginal community. There is also a little doubt that Gond community is an aboriginal community. In this view, it cannot be said that the petitioner had made a false declaration. The person who drew up the charge, namely, the Divisional Personnel Officer, also confused the matter by mentioning " "scheduled tribe community". In my view, the persons who drafted the application form also did not know how the question of a scheduled caste or scheduled tribe became relevant in the matter of appointment to the Railway Service. This was relevant because of the provisions in cl. (4) of Article 16 of the Constitution read with Articles 885 and 342. It has been held that the provision in Article 16(4), though widely couched, using the expression "backward Glass" also includes reservation for the members of the scheduled castes and tribes because these tribes and castes are obviously backward classes; Devadasan v. Union of India, A.I.R. 1964 SC 179 (188) . The form of application, therefore, should not have used the expression aboriginal communities which is a vague expression and can be generally used to comprise of aboriginal communities whether or not they are formally included within the declaration of scheduled castes or scheduled tribes in an order issued under Article 842 of the Constitution.;