GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 3. 1. 2003 with the prayer that by an appropriate writ, order or direction, the order dated 3. 12. 2002 (Annex. 6) passed by the respondent No. 2 Addl. District Magistrate (City), Bikaner by which the earlier order dated 30. 8. 1983 (Annex. 1), by which the petitioner was given certificate declaring him to be a member of Scheduled Caste category (santia (sadh), was cancelled and further, another order dated 12. 12. 2002 (Annex. 8) passed by the respondent No. 3 Secretary, Rajasthan Housing Board, Jaipur by which the petitioner was put under suspension, be quashed and set aside and the petitioner be reinstated in service with all consequential benefits.
(2.) THE case of the petitioner as put forward by him in this writ petition is as follows:- THE petitioner submitted an application alongwith affidavit and necessary documents before the City Magistrate, Bikaner for issuance of certificate declaring him to be a member of scheduled caste category, as according to the petitioner, his caste Santia (sadh) falls under the scheduled caste category under the Constitution and on that application, after verification, the City Magistrate, Bikaner issued certificate Annex. 1 on 30. 8. 1983 in favour of the petitioner declaring him to be a member of scheduled caste category. THE further case of the petitioner is that thereafter, after acquiring qualification of Bachelor of Engineering from M. B. M. Engineering College, Jodhpur, he was appointed Project Engineer (Junior) vide order dated 9. 6. 1992 (Annex. 2) issued by the respondent No. 3 Secretary, Rajasthan Housing Board, Jaipur. THE further case of the petitioner is that thereafter, a complaint was made against the petitioner that he had obtained certificate (Annex. 1) dated 30. 8. 1983 by placing false documents as he was not member of scheduled caste category and on that complaint, a show cause notice dated 18. 11. 2000 (Annex. 3) was issued by Addl. District Magistrate (City), Bikaner to the petitioner and in response to the said show cause notice (Annex. 3), the petitioner first demanded some documents through application Annex. 4 dated 1. 1. 2001 and when documents were not supplied to him, he submitted his reply to the show cause notice (Annex. 3) on 6. 1. 2001, a copy of which is marked as Annex. 5. THE further case of the petitioner is that thereafter, Addl. District Magistrate (City), Bikaner conducted enquiry and submitted his enquiry report to District Collector, Bikaner through Annex. 7 inter-alia holding:- (i) That Swami, Sadh (Santia, Satia) are one caste and similarly, Sadh and Santia are also one caste, but these castes belonged to OBC category and not to scheduled caste category. (ii) That in similar circumstances, a Division Bench of this Court in D. B. Civil Writ Petition No. 1737/80 Dinesh Chandra vs. THE State of Rajasthan (decided on 9. 3. 1989) had not found the petitioner of that case guilty and ordered that he be kept in service. (iii) That certificate Annex. 1 dated 30. 8. 1983, which was issued in favour of the petitioner, was issued after due verification and satisfaction. (iv) That in the light of the observations and proposition as laid down in the case of Dinesh Chandra (supra), the present petitioner could also not be held guilty. (v) That ultimately, the learned Addl. District Magistrate came to the conclusion that caste of the petitioner i. e. sadh (santia) falls under the category of OBC and not under scheduled caste category. On the basis of that enquiry report (Annex. 7), order Annex. 6 dated 3. 12. 2002 was issued by the respondent No. 2 Addl. District Magistrate (City), Bikaner by which the certificate Annex. 1 dated 30. 8. 1983 declaring the petitioner as member of scheduled caste category was cancelled and thereafter, through order Annex. 8 dated 12. 12. 2002, the petitioner was placed under suspension and both these orders Annex. 6 and Annex. 8 have been challenged by the petitioner in this writ petition on various grounds and the main grounds are as follows:- (i) That even in the enquiry report (Annex. 7), the Addl. District Magistrate (City), Bikaner has come to the conclusion that in view of the judgment of this Court in the case of Dinesh Chandra (supra), the petitioner could not have been held guilty. (ii) That under Article 341 of the Constitution of India, Scheduled Castes Order, 1950 was issued which did not include the caste Santia (Sadh) as belonging to scheduled caste category, but however, in the list of Other Backward Classes at item No. 55 (Annex. 9), the caste sadh (Santia) was shown as belonging to OBC, but in the year 1956, Scheduled Castes Order, 1950 was amended and 14 castes, which were not included earlier under SC category, were further added in the scheduled caste category and caste sadh (santia) was also added at serial No. 53 as belonging to SC category, which is evident from Annex. 10 and thus, from that point of view also, the caste of the petitioner i. e. Sadh (Santia) should have been treated as belonging to scheduled caste category. (iii) That in similar circumstances, the Division Bench of this Court in the case of Dinesh Chandra (supra) did not find the petitioner of that case guilty and the Division Bench of this Court further came to the conclusion that certificate, which was obtained by the petitioner of that case, which was acted upon by the concerned authority later on, cannot be said to have been obtained by him fraudulently and thus, the Division Bench of this Court directed that the petitioner of that case be reinstated back in service with all consequential benefits. Thus, from this point of view also, the petitioner is entitled to the relief sought for. A reply to the writ petition was filed by the respondents Nos. 3 and 4 in which they took preliminary objection to the effect that whether a person is a member of scheduled caste category or not cannot decided by this Court in writ jurisdiction under Article 226 of the Constitution of India because presidential order cannot be scrutinized by the Court in India and from this point of view, this writ petition deserves to be dismissed. On merits, it has been submitted by the respondents Nos. 3 and 4 that the caste of the petitioner i. e. sadh (santia) falls under the category of OBC and not under the category of scheduled caste. In this respect, they have placed reliance on the order dated 8. 08. 1994 (Annex. R/3/1) issued by the Government of Rajasthan in which the caste Sadh was shown at serial No. 46 as belonging to OBC. Hence, the petitioner is not entitled to the relief sought for and this writ petition deserves to be dismissed. A similar reply was also filed by the respondents No. 1 and 2. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the materials available on record. There is no dispute on the point that the Scheduled Castes Order, 1950 has been promulgated by the President in exercise of power conferred by Article 341 of the Constitution of India. In order, therefore, to determine whether particular caste is `scheduled Caste' within the meaning of Article 341, one has to look to the terms of this Order. Once the Parliament by law includes in or excludes from any race, caste, tribe, parts of or groups within any caste, race or tribe, the President thereafter shall have no power to vary it by any subsequent notification. The Court is also devoid of power to include in or exclude from or substitute or declare synonyms to be a scheduled caste or scheduled tribe or parts thereof or group of such caste or tribe. The Courts have no power to go behind this Order, or to hold any inquiry or to let in any evidence to determine whether or not any particular community falls within the Order or not. Where the President's Notification declares a caste to be Scheduled Caste for the purposes of certain specified States, no Court can direct that caste to be declared Scheduled Caste in relation to another State. Thus, it can be concluded that the Presidential Order cannot be challenged or substituted by any other authority except that power of amendment of the President's Order made under Clause (i) of Article 341 has been given to Parliament as per clause (2) of Article 341. Such amendment cannot be made by the Court, even indirectly. The entries in the Presidential Order has to be taken as final. It is not open to the Court or State to make any addition or substitution in the Presidential Order. The Presidential Order can only be amended by legislation by Parliament.
(3.) IN the present case, there is no dispute on the point that earlier in the Presidential Order, the caste santia (sadh) was shown in the category of OBC and later on, as per averments made in the writ petition, Scheduled Caste Order, 1950 was amended in the year 1956 and caste sadh (santia) was included in the list of scheduled caste category. This is one of the aspects of the matter. In this case, there is no dispute on the point that certificate (Annex. 1) dated 30. 8. 1983 declaring the petitioner as member of scheduled caste category was issued by the competent authority. From the enquiry report Annex. 7 of Addl. District Magistrate (City), Bikaner, it is also clear that there was confusion in respect of caste sadh (santia) as to whether it belonged to OBC or SC category, but since there was Division Bench judgment of this Court in the case of Dinesh Chandra (supra), therefore, it cannot be said that the petitioner was guilty or he has represented wrongly or he had obtained the certificate (Annex. 1) by placing wrong facts. ;