- (1.) The instant appeal under clause X of the Letters Patent is directed against judgement dated 3.8.2011 rendered by the learned Single Judge holding that the writ petitioner- respondent who belongs to Majbi/ Balmiki caste has secured more marks than the candidate of his own category Shri Charanjit Singh who had secured 59.93 marks. The writ petitioner- respondent being higher in merit was entitled to be appointed and the aforesaid fact was not disputed by the learned State Counsel before the learned Single Judge.
(2.) The only issue raised by the learned State counsel is that although the petitioner belongs to scheduled caste but the writ petitionerrespondent while filling up on-line application form (P.7) was asked to select any one of the sub category from amongst many sub categories of the scheduled castes. In the proforma he has opted for sub category of Ram Dasia. On the basis of the aforesaid option secured from the writ petitionerrespondent it has been argued that in his own sub category of Ram Dasia which is also a scheduled caste , the petitioner was lower in merit and therefore could not claim superior right as against Shri Charanjit Singh, the last candidate belonging to another sub category who had secured 59.93 marks.
(3.) The aforesaid argument of the learned State Counsel would not merit acceptance because it is now well settled that a consolidated class of scheduled castes cannot be further divided into sub classes. In that regard reliance may be placed on the ratio of the judgement rendered by 5 Judge Constitution Bench of Hon'ble the Supreme Court rendered in the case of E.V.Chinnaiah v. State of Andhra Pradesh, 2005 1 SCC 394. The following paragraph from the aforesaid judgement would put the constitutional issue beyond any doubt which reads thus: " The conglomeration of castes given in the Presidential Order, in our opinion, should be considered as representing a class as a whole. The contrary approach of the High Court, in our opinion, was not correct. The very fact that a legal fiction has been created is itself suggestive of the fact that the Legislature of a State cannot take any action which would be contrary to or inconsistent therewith. The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be sub-divided or sub-classified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the List. Such sub-classification would be violative of Article 14 of the Constitution of India. It may be true, as has been observed by the High Court, that the caste system has to stuck up in the Society but with a view to do away with the evil effect thereof, a legislation which does not answer the constitutional scheme cannot be upheld. It is also difficult to agree with the High Court that for the purpose of identifying backwardness, a further inquiry can be made by appointing a commission as to who amongst the members of the Scheduled Castes is more backward. If benefits of reservation are not percolating to them quitably measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others but the same would not mean that in the process of rationalizing the reservation to the Scheduled Castes the constitutional mandate of Articles 14,15 and 16 could be violated.";