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PETITIONER: KISHORILAL HANS

       Vs.

RESPONDENT: RAJA RAM SINGH & ORS.

DATE OF JUDGMENT30/11/1971

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HEGDE, K.S.

CITATION:  1972 AIR  598            1972 SCR  (2) 632  CITATOR INFO :  RF         1990 SC 991  (13)

ACT: Constitution  (Scheduled  Castes) Order 1950  and  Scheduled Tribes  Lists  (Modification) Order  1956--Jatav  caste  not mentioned  as  Scheduled caste in Datia District  of  Madhya Pradesh--Election  petition--Candidate  belonging  to  Jatav caste  seeking  to  prove that Jatav caste  is  included  in chamar  caste which is mentioned in order--Such inquiry  not permissible in view of Art. 341 of Constitution.

HEADNOTE: Thee  appellant was declared elected in February  1967  from the  Bhander Assembly constituency in District Datia of  the State  of  Madhya Pradesh a seat which was  reserved  for  a scheduled   caste   candidate.    Under   the   Constitution (Scheduled  Castes)  Order 1950 and Scheduled  Tribes  Lists (Modification)  Order  1956  the  President  of  India   had declared  in  respect of District Datia the  various  castes which  were to be recognised as Scheduled castes.  In  items thereof the castes mentioned were : ’Chamar, Ahirwar, Chamar Mangam,  Mochi and Raidas.’ The respondent, an  unsuccessful candidate  at the said election filed an  election  petition inter alia on the ground that the appellant, was a Jatav  by caste  and  therefore not a member of any of  the  scheduled castes  mentioned in the Presidential Order.  The  appellant contended that the Jatav caste was a sub-caste of the  caste chamar  mentioned  in  the order.  The  High  Court  decided against the appellant who appealed to this Court. HELD  :  From the evidence there was little room  for  doubt that although at one time Jatavs might have been chamars but they  became a distinct caste or came to be recognised as  a separate  caste several years ago.  The fact that they  were shown separately as a caste in the Madhya Bharat and several others  states  in the Scheduled Caste or  Scheduled  Tribes Order (Amendment) Act 1956 shows that the existence of Jatav caste was recognised. [642 C] The  evidence  in the form of representations  made  by  the members of Jatav community including the returned  candidate himself  apart  from other oral  evidence,  established  the existence  if Jatav caste even in Datia  district but it  so happened that it was not included either in the Act of  1956 or  the Presidential Order among the Scheduled Castes.  [642

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E] If the matter were res-integra there might have been a  good deal  of difficulty in reconciling with  the  constitutional provisions the scheme followed in the Presidential Orders by which the same caste has been included in some districts  of the same State and excluded in other districts.  This Court, however in Bhaiyalal v. Balkishan Singh & Ors. made observa- tions  repelling the contention that under Art. 341  of  the Constitution  the president was not authorised to limit  the notification to parts of a State. [644 C] In  Bhaiyalal’s  case it was also held that  the  plea  that though the appellant was not a chamar as such he could claim the  same status by reason of the fact that he  belonged  to the  Dohar caste which is a sub-caste of the  chamar  caste, could not be accepted.  An inquiry of that kind was held not be permissible having regard to the provision of Art. 341 of the   Constitution.    The   case   of   Basavalingappa   v. Munichinnappa was referred 633 to.  Following these two decisions it must be held that  the returned candidate, in the present case, was not entitled to establish that Jatav caste was the same as Chamar. [644 F-H] the appeal must accordingly be dismissed. Bhaiyalal  v.  Harikishan  Singh, [1965] 2  S.C.R.  877  and Basavalingappa  v.  Munichinnappa,  [1965]  1  S.C.R.   316, applied.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 2123  and 2237 of 1969. Appeals  under S. 116-A of the Representation of the  People Act, 1951 from the judgment and, order dated August 29, 1965 of  the Madhya Pradesh High Court, Indore Bench in  Election Petition No. 18 of 1967. Rameshwar Nath, for the appellant (in C.A. No. 2123 of 1969) and respondent No. 1 (in C.A. No. 2237 of 1969). A. K. Sen,  G. L. Sanghi and K. P. Gupta, for respondent No. 1 (in C.A. No. 2123 of 1969) and the appellant: (in C.A. No. 2237 of 1969). The Judgment of the Court was delivered by Grover, J. These are two cross,-,appeals from a judgment  of the  Madhya Pradesh High Court.  We shall give the facts  of C.A.  No.  2123/69 which arises from  an  election  petition filed  by  the  respondent  Rajaram  Singh  an  unsuccessful candidate   in   the  High  Court  under  s.   81   of   the Representation  of People Act 1951, hereinafter  called  the ’Act’,  challenging  the election of the appellant  who  was declared  duly  elected in February 1967  from  the  Bhander Assembly Constituency of the State of Madhya Pradesh-a  seat which was reserved for a scheduled caste candidate. The  last date for filing the nomination papers was  January 20,  1967, the date of scrutiny was January 21,  1967.   The pool  took  place on February 20, 1967.  The result  of  the election  was declared on February 21, 1967.  The  appellant obtained 24,549 votes whereas respondent No. 1 obtained 8096 votes.  A number of allegations were raised in the  election petition and as many as 12 issues were framed with a  number of  sub-issues.   On  all  the  issues  the  allegations  of respondent No. 1 were negatived with the exception of  issue No. 1. That issue was as follows :-               (1)   (a)   Whether  respondent  No.  1   Shri               Kishorilal  belongs  to  the  Jatav  caste  as               alleged by the petitioner.

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             (b)   Whether,  therefore,  respondent  No.  1               does  not belong to the scheduled  caste  and,               therefore,  does  not  possess  the  necessary               qualifications of a scheduled               634               caste  candidate  for  the  Bhander   Assembly               Constituency  in question which is a  reserved               seat  for scheduled caste candidate  only,  as               alleged by the petitioner ?               (c)   Whether  Jatav caste is one of the  sub-               castes of Chamar as alleged by respondent  No.               1 ?               (d)   Assuming  that  ’Jatav’  is  a  separate               caste  then  whether ’Jatav’  is  recorded  as               scheduled  caste  for the purpose  of  Bhander               Assembly  Constituency in question as  alleged               by respondent No. 1 ?               (e)   Whether,  therefore, on this  ground  he               was  entitled  to contest the  election  as  a               scheduled  caste  candidate from  the               Bhander Assembly Constituency, although he  is               a  permanent  resident  of  village   Bargawan               within  the Seondha Assembly  Constituency  in               which he is recorded as a voter as alleged  by               him ? The  High Court found sub-issue (a) in the  affirmative  and held  that the appellant belonged to the ’Jatav’ caste.   On sub-issue (b) it was held that the appellant did not possess the necessary qualifications and was, therefore, unqualified to  fill the @ in question.  On sub-issue (c) the court  was of  the  opinion  that no inquiry could  be  made  into  the question whether the ’jatav’ caste, is one of the sub-castes of  Chamar.  Sub-issue (d) was answered in  the  affirmative and (e) in the negative. The  only question which now survives for  consideration  is whether  the  High  Court  was right  in  holding  that  the appellant  was not a member of the scheduled caste and  was, therefore,  disqualified to stand for a seat reserved for  a scheduled  caste.   We  may refer to the  pleadings  of  the parties  on  the  point.  In the election  petition  it  was alleged in para 6 that the name of the appellant before  us, who  will  hereafter  be  referred  to  as the  ..returned candidate"  was  not  entered  in  the  electoral  roll  for legislative  assembly constituency no. 2  Seondha,  district Datia  in part No. 81, village Bargawan on serial  No.  154. He  was  a  permanent resident of that  village  within  the aforesaid  assembly  Constituency.  The  returned  candidate belonged  to  the ’Jatav’ caste which was no,,  a  scheduled caste  declared  for  the  purpose  of  election  for  Datia district.  He had fraudulently cancelled his jatav caste and represent  himself  to  be  a Chamar lie  had  stood  a,,  a candidate for the Bhander Assembly Constitution.  Under  the Constitution (Scheduled Castes) Order 1950 and the Scheduled Caste  and Scheduled Tribes Lists (Modification) Order  1956 the  President of India had declared in respect of  District Datia the 635 various  castes  which were to be  recognised  as  scheduled caste.  Item 3 thereof was as follows :- "Chamar, Ahirwar, Chamar Mangam, Mochi or Riadas". It was asserted that Jatav caste had not been recognised  as a scheduled caste by the President in the district of  Datia as the social level of development of that unity was of such a high degree that it did not require any such protection or recognition  or privilege.  It was further added that  there

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were  thousands of families of Jatavs in Datia  district  in the  erstwhile State of Vindya Pradesh but Jatav  caste  was not  recognised  as  a  scheduled  caste.   In  his  written statement the returned candidate admitted that his name  was entered as alleged in the election petition and that he  was a  resident  of village Bargawan, district  Datia.   It  was denied  that  he belonged to Jatav caste as alleged  in  the petition.   It  was claimed that he belonged to  the  Chamar caste and Jatav caste was one, of the sub-castes of  Chamar. It  was  denied  that Chamar caste  was  not  recognised  as scheduled  caste for the purpose of election to the  Bhander Constituency.    It  was  also  denied  that  the   returned candidate did not fraudulently conceal his real Jatav  caste and  represented himself to be a Chamar.  Without  prejudice to what has been pleaded before us was claimed that even  if ’Jatav’ was treated as a separate caste and not a  sub-caste of  the  Chamar caste ’Jatav’ was recorded  as  a  scheduled caste for the purpose of Bhander assembly constituency  from which the returned candidate contested the election.  It was immaterial,  according to him, whether Jatav as  a  separate caste was recorded or not in the Datia district in which his name was entered in the electoral roll.  Other assertions in the  election petition on the point were not  admitted.   It was  ultimately  maintained  that there  was  no  difference between  Jatav and Chamar castes and it was reiterated  that Jatav was only a sub-caste of Chamar. Accordingly  to the Presidential Order Jatav was not one  of the  castes mentioned in it so far as Datia district of  the Madhya  Pradesh  State was concerned in which  the  returned candidate   was  enrolled  as  an  elector.   In  the   area comprising the Bhander Constituency from where the  returned candidate  stood  for election Jatav was one of  the  castes which  was included in the aforesaid Order.  But it  is  not claimed, and rightly so. that fact could be of any avail  to the  returned candidate.  If he was a Jatav by caste and  if that  caste  did not find any mention  in  the  Presidential Order in the Datia district the returned candidate could not be  regarded  as  having  the  qualifications  for  offering himself for election in a constituency reserved for a member of the scheduled caste. 636 Before  us  it  has been argued on behalf  of  the  returned candidate  that  he belonged to the Chamar caste  which  was admittedly one of the castes included in the Order even  for Datia district.  It is asserted that he was not a Jatav  and that  certain  section of the Chamars in that  district  was anxious  to  be called by the name of Jatav because  it  had given up the profession of making shoes and did- not wish to be called Chamar since that word smacked of inferior status. In  other words, the caste to which the  returned  candidate belonged was, in fact, the Chamar caste and it did not  make any  difference  if he along with several others  from  that caste  made attempts at various stages to be called  by  the name of Jatav.  The other contention that has been sought to be  pressed is that all the Jatavs in Datia district are  in fact Chamars ,and therefore the mention of the Chamar  caste was  sufficient  for the purpose of including them  in  that caste and it was not necessary to mention Jatavs separately. Thirdly  it has been submitted that even on  the  assumption that  the returned candidate belonged to the Jatav caste  he could  not be held to have been disqualified to fill in  the seat  reserved  for a scheduled caste keeping  in  view  the provisions of s. 5 of the Act. The  crucial  question  which must first  be  determined  is whether  the returned candidate was a Chamar by caste or  he

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belonged  to  the Jatav caste if there was such a  caste  in existence in the Datia district.  The High Court  considered the oral evidence and relied a good deal on some  pamphlets which had been issued by certain organizations of the  Jatav caste in which the returned candidate was an  office-bearer. Reference  may  be made, in particular, to  three  pamphlets Exhs.   P.  16,  P.  17 and P. 18  which  were  printed  and published.  These pamphlets related to Jatav Sammelans which were held in certain places in tehsil Datia etc.  In Exh. P. 16 the returned candidate was shown as one of the conveners; in   Exh.   P. 17 he was shown as one of the conveners.   In Exh. P.   18  it was mentioned that the returned  candidate, who was the Mantri (Secretary) of the Jatav Sabha Datia  was also  expected  to attend the Jatav  Sammelan  Barchouli  in tehsil Bhander.  As noticed by the High Court the  substance of  these  pamphlets  Exhs.   P. 16 and P.  17  was  that  a deputation   consisting  of  the  representatives   of   the Provincial  Jatav  Sabha  under the  leadership  of  Atamdas President  of that Sabha waited upon the Collector of  Datia district  on January 12, 1961.  One of the grievances  which was brought to the notice of the Collector was that some  of the officers and the clerical staff did not record the caste of  Jatav community as Jatav even though the members of  the said  community told them that their caste was  Jatav.   The Collector  had  issued an order to all his  subordinates  to record Jatav. as the ,caste of the persons belonging to  the Jatav community.  By these 637 pamphlets  Jatavs  were advised to record their  true  caste i.e. ’Jatav’ in the Census operations which were to commence in February 1961.  Exh. p. 18 was a pamphlet.  The substance of which was that a big Sammelan of the Jatav community  and other  depressed classes would be held on January  26,  1960 -at Mouza Barchouli in which various difficulties which were being   experienced   by  the  Jatav  community   would   be considered.  As mentioned earlier it was stated in Exh.   P. 18  that  the returned candidate who was  described  as  the Secretary  of  the Jatav Sabha, Datia was also  expected  to attend  that Sammelan.  Another document Exh.  P.  60  which was  a resolution passed at a Jatav Sammelan held at  Tharet on October 24, 1963 showed that a demand had been made  that scholarships  should be given to the students  belonging  to the  Jatav  community  exactly in the same  manner  as  such scholarships were being awarded to students belonging to the scheduled  castes.  The name of the person who is  shown  as having  seconded this resolution which was proposed  by  one Lalu  Ram Jatav is that of the returned candidate.   Certain criminal  proceedings  were started  against-  the  returned candidate in 1964.  From the record of the criminal case  it appeared that in the personal bond Exh.  P. 10 dated May  6, 1964  the returned candidate had given his caste  as  Jatav. There  were other similar documents i.e. Exh.  P.  55  which was  a  personal  bond and the security bond  Exh.   P.  56. According to the High Court all than documents from 1960  to 1964 showed that the returned candidate was a Jatav by caste and  in his capacity as Secretary of Jatav  Sabha,  district Datia  he  organised  various Jatav  Sammelans  to  get  the grievances of the members of the Jatav caste redressed.   In none  of  these  documents it was mentioned that  he  was  a Chamar  nor was there the remotest indication to  show  that these Sammelans had been organised by the returned candidate in his capacity as a Chamar.  The High Court referred to the oral evidence also but it will be wholly futile to refer  to the  entire  evidence except the statement of  the  returned candidate  himself  and of some of  the  material  witnesses

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produced by both sides, if necessary. There  were certain Other documents which had been filed  by Hari Narain Ken P.W. 20 who was the General Secretary, Jatav Sabha, Madhya Bharat and the then Madhya Pradesh since 1948. It  will  be useful at this stage to refer to  the  original Presidential  Order  and the changes which were made  in  it subsequently.   According  to  the  Constitution  (scheduled Caste) Order 1950 which was Promulgated in. exercise of  the powers   conferred  by  clause  (1)  of  Art.  341  of   the Constitution  soon after it came into force Jatavs were  not shown  among  the  scheduled castes in  Madhya  Pradesh  and Madhya Bharat.  Among the other castes Chamar was mentioned. Similarly  in  the Constitution (scheduled  Castes)  Part  C States Order 1951 only Chamar was shown, 638 among the scheduled castes in Vindhya Pradesh.  A Bill No. 8 of  1956 was introduced in the Lok Sabha which  appeared  in Gazette  Extra Ordinary of April 6, 1956.  This Bill was  to provide for the inclusion in and exclusion from the list  of scheduled  castes and of scheduled tribes of certain  castes and tribes.  The entries proposed which are relevant for our purposes in the then three States of Madhya Pradesh,  Madhya Bharat and Vindhya Pradesh were as follows Madhya Pradesh "Chamar,  Chamari,  Mochi, Nona, Rohidas,  Ramnami  Satnami, Surjyabanshi or Surjyaramnami." Madhya Bharat "Chamar, Bairwa, Bhambi, Jatav.  Mochi, or Regar."  Vindhya Pradesh. "Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas". On  September  25,  1956 the Scheduled  Castes  &  Scheduled Tribes Order’s Amendment Act 1956 received the assent of the President.  The Act followed the same scheme which was to be found  in  the Bill.  In other words in Vindhya  Pradesh  in entry 3 apart from Chamar, Ahirwar, Chamar Mangam, Mochi  or Raidas were included.  It is noteworthy that upto this stage Jatav  caste  was not included in the  erstwhile  States  of Madhya Pradesh and Vindhya Pradesh but were included only in Madhya  Bharat, After the States Reorganisation Act came  to be  enacted the Scheduled Castes and Scheduled  Tribes  List (Modification) Order 1.956 was promulgated pursuant to s. 41 of  the said Act.  Madhya Bharat and Vindhya Pradesh  ceased to be. separate States and the territories of Madhya  Bharat with a few exceptions and Vindhya Pradesh became part of the State  of Madhya Pradesh.  In the district of Bhind etc.  in item  9  Jatav  was included in  the  entry  beginning  with Chamar.  However in several other districts Jatavs were  not included  and in particular in the districts which  formerly formed part of Vindhya Pradesh including Datia. It  appears  that  when  the Bill  referred  to  before  was introduced  in the Parliament prior to the enactment of  the States  Reorganisation  Act 1956 a memorial dated  July  17, 1956  was  sent by the President of the Jatav Sabha  to  the Government of India.  In that memorial Exh.  P. 57 a protest was made for not recognizing the Jatav caste as a  separate caste and a strong case was, made 639 out  for  recognizing  Jatav as a distinct  caste.   It  was pointed  out in that memorial that the Government of  India, prior  to  the coming into force of  the  Constitution,  had regarded  Jatav as a depressed class, but the same had  been excluded  from the list of scheduled castes in  some  States i.e.  Madhya Bharat, Bhopal and Madhya Pradesh etc.  without any rhyme or reason.  It was further stated :               "Now an Amendment Bill of the Scheduled Castes

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             which  has  been submitted by you in  the  Lok               Sabha  on  6th April 1956, therein  the  Jatav               community   has  been  illegal  and   unjustly               proposed  to  be included in  other  Scheduled               Castes  with  which we  have  no  endogenously               connection.   I have the honour to  point  out               here  that Jatavs did never wish to leave  the               fold  of the Scheduled Castes.  But we  desire               to  remain  under  a  Separate  Column  as   a               separate  caste  in  the  list  of   Scheduled               castes". Among  the  demands  set  out  in  the  memorial  were  the, following (1) the Jatav caste should be included in the list of  scheduled  caste  in the States of  Madhya  Pradesh  and Vindhya  Pradesh.   It  was added that  in  Vindhya  Pradesh Jatavs  were included in the list in the Presidential  Order 1950;  but  it  was urged that  they  should  be  separately mentioned  and  not grouped with the other castes.   It  was pointed  out  that  in  the  following  States  Jatavs  were included  in the list of Scheduled castes but  were  grouped with  Chamar, Reghar or Mochi etc. and that they  should  be separately mentioned as a scheduled caste : "Madhya  Bharat,  Bhopal, Uttar Pradesh,  Rajasthan,  Ajmer, Delhi." It is apparent that repeated attempts were being made by the representatives  of  the  Jatav caste to  have  their  caste included in the list of Scheduled Castes wherever they  were not  included and to have that caste separated from  Chamar, Regar or Mochi etc. and not be grouped with these castes  in those  areas where they were so shown.  It is  obvious  that after  the  reorganisation of the States in  1956  when  the Scheduled  Castes and Scheduled Tribes  List  (Modification) Order  1956 was promulgated Jatavs were not  included  among scheduled  castes  in the districts  including  Datia  which comprised  the erstwhile State of Vindhya Pradesh.   If  the case  of  the returned candidate had been,  right  from  the beginning, that whatever representations were made to  which he  was a party the object was to get a certain  section  of the  Chamars who had started followed  different  avocations designated  by  the name of Jatavs and included  under  that name among the scheduled castes the position might have been different; but all 640 the  pamphlets  etc.  and the  activities  of  the  returned candidate  showed  that he was a Jatav and  that  caste  was quite  different from that of Chamars.  Indeed no such  case was  raised  in the written statement and even  in  his  own statement  the  returned candidate did not make out  such  a case.  He started by saying in examination-in-chief that  he was  a  Chamar by caste but then he proceeded  to  say  that Jatav  is a sub-caste of Chamar.  He did not explain how  he came  to  be associated with the various activities  of  the Jatav  Organisation where his name was shown prominently  as one  of the office-bearers, particularly with  reference  to the branch of the Jatav Organisation in Datia.  He denied in cross-examination  that  he attended any Jatav  Sammelan  in Pichhor  tehsil.   He  admitted, however,  that  in  Bhander tehsil he visited Jatav Sammelan twice.  On one occasion  he went to the Sammelan at Mouza Barcholi.  It appears that  he did  not  have any clear idea about the caste  to  which  he belonged.  The following questions and answers will show the complete confusion in his own mind as to whether Jatavs  and Chamars formed one caste or whether Jatav was a sub-caste of Chamar :- " Q. I put it to you whether you are a ’Jatav Chamar’?

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A.   I am a Chamar (Mai Chamar Hoon). Q.   Whether ’Jatav’ and ’Chamar’ is one and the same  thing ? A.   Yes, Chamar and Jatav is one and the same caste. Q.   Whether ’Jatav’ is a sub-caste of ’Chamar’? A.   It is true that the ’Jatav’ is a sub-caste of ’Chamar’. Q.   Whether you are a Jatav or not ? A.   I am a Chamar. I am not a Jatav.  As a Jatav Chamar I did not organise  any Sammlan  in  Bhander and Pichhor tehsils.  I did that  as  a Chamar.   Those  Sammelans used to be known by the  name  of ’Jatav’ Sammelan". The only attempt which appears to have been made to  develop a  case  that  the Chamars of Datia district  wanted  to  be called  Jatavs and so included in the list of scheduled  was in the cross-examination of Rajaram P.W. 23.  The  following part  of  his cross-examination may be  reproduced  in  this connection :               "Aherwar, Dohar, Raidas and ’JATAV’ are not of               ’CHAMAR’ caste.  They are all separate castes.               It is               641               not true that because the word ’CHAMAR’ smacks               of inferiority complex, therefore they started               calling themselves ’JATAVS’.               Q.    I put it to you that because the Chamars               prepare shoes and therefore, this is not liked               by  people  and  on this account  they  to  be               called ’JATAV’.  What have you to say to  this               ?               A.    This is not correct.  CHAMARS do prepare               shoes,  but Chamar is a different  caste  from               ’JATAV"’. In  our judgment it will not be in accord with  the  correct principles  either of the law of pleadings or  otherwise  to allow  the  returned candidate to now make out  a  case  for which  no proper foundation was laid either in  the  written statement or even in the evidence. Coming  back to the question whether the returned  candidate belonged to the Jatav or the Chamar caste it is difficult to disagree  with  the High Court that he had failed  to  prove that he was a Chamar and not a Jatav.  It is true that right from  the beginning all the entries in the  revenue  records relating  to  the castes of the ancestors  of  the  returned candidate  including  his close relations  which  have  been fully  referred  to  by the- High Court  showed  that  these persons  were described as belonging to the Chamar    caste. The  High  Court considered the weight of  the  evidence  of these   entries  and  pointed  out  that  the  entries   had presumptive  weight only and the same had been  rebutted  by the   other  evidence  and,  in  particular,   the   various representations  which  were being made to  the  authorities concerned that persons belonging to the Jatav community were not being entered as Jatav but were being entered as Chamar. The  Collector had, from time to time,    passed  orders and directed  his  subordinates  to record the  caste  of  these people as Jatav, if they stated that to be their caste.  All this  shows that in Datia district the members of the  Jatav caste in spite of their persistent assertion and claim  that they  formed  a  case separate and  distinct  from  that  of Chamars was not being entered in the official records by the authorities  concerned.  It is somewhat difficult to  accept as was the evidence of some of the witnesses that Jatav  and Chamar  were the same castes.  Ved Prakash P.W. 19  on  whom reliance  was  placed on behalf of  the  returned  candidate

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stated  that Chamar caste and Jatav caste were one  and  the same.   The evidence of Sham Saxena P.W. 15 was to the  same effect.  Harinarain Ken P.W. 20 stated that there was an All India  Jatav  Sabha and he was the Secretary of  the  Madhya Pradesh Jatav Sabha since 1948.  He proved the memorandum to which reference has already been made which was submitted on behalf of the Jatav caste for recognising it as a 642 distinct  caste.  He was quite certain that Jatav caste  did not  form part of the Chamar caste.  The evidence  of  Dhani Ram  R.W.  1,  who  is a  close  relation  of  the  returned candidate,  was that Jatav and Chamar was one and  the  same caste.   R.W. 11 an uncle of the returned candidate  claimed that  he  belonged  to  the  Chamar  caste  but  in   cross- examination  stated  that he was a Jatav Chamar.   From  the entire  evidence to which it is unnecessary to  refer  there seems to be little room for doubt that although at one  time Jatavs  might have been Chamars but they became  a  distinct caste  or came to be recognised as a separate caste  several years  ago.  The fact that they were shown separately  as  a caste  in the Madhya Bharat and several other States in  the Scheduled  Caste and Scheduled Tribes Order (Amendment)  Act 1956 shows that the existence of Jatav caste was recognised. A  caste, it is wellknown, cannot spring up or develop in  a short  period  of time.  It is unnecessary to  go  into  the question of the origin of a caste but it cannot be gain said that  a  caste  must  be  in  existence  before  it  can  be recognised as such.  The fact of recognition of Jatav  caste as a caste in the statutory provisions and Orders  mentioned be-fore though confined to certain States and parts of those States  cannot  be ignored.  It cannot, therefore,  be  said that  Jatav  and  Chamar was one and  the  same.   The  only question  is  whether  there was any Jatav  caste  in  Datia district.  The evidence in the form of representations  made by  the  members of Jatav community including  the  returned candidate himself apart from other oral evidence established the  existence of Jatav caste even in Datia district but  it so  happened that it was not included either in the  Act  of 1956  or the Presidential Order among the scheduled  castes. This position appears to be highly anomalous.   Ordinarily if  Jatav  caste  was included so far as the  old  State  of Madhya  Bharat  was concerned and was also included  in  the districts  which constituted the erstwhile State  of  Madhya Bharat even after its merger in the Madhya Pradesh after the States  Reorganisation  Act there seems to be no  reason  or justification  for excluding the Jatavs of  Datia  District. Their  exclusion apparently was due to the fact that in  the erstwhile  State of Vindhya Pradesh of which Datia  district formed  a part Jatav caste was not included in the  list  of scheduled caste. In order to find out why in the Presidential Order issued in 1950  pattern  of  which was  followed  in  later  statutory provisions  and  Orders certain castes  were  recognised  as scheduled castes in other parts of the same State one has to go  back to the Government of India (Scheduled Caste)  Order 1936.   By certain provisions in the First, Fifth and  Sixth Schedules  to the Government of India Act 1935, His  Majesty in Council was empowered to specify the caste, race or tribe or parts of or groups within the 643 caste, race or tribes which were to be treated as  Scheduled caste.   Part  11 of the aforesaid Order of 1936  which  was issued  in exercise of the power conferred by the  aforesaid provisions was as follows : -               " subject to the provisions of this Order, for

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             the  purposes  of the First, Fifth  and  Sixth               Schedules  to  the Government  of  India  Act,               1935, the castes, races or tribes, or parts of               or  groups  within castes,  races  or  tribes,               specified in Parts I to IX of the Schedule  to               this  Order shall, in the Provinces  to  which               those Parts respectively relate, be deemed  to               be scheduled castes so far as regards  members               thereof  resident in the localities  specified               in  relation  to them  respectively  in  those               Parts of that Schedule". In  the Schedule certain castes were mentioned as  scheduled caste  for  the  whole  of a  particular  Province  or  part thereof.   While issuing the Presidential Orders under  Art. 341 of the Constitution the same pattern was adopted and the scheme   was  to  specify  scheduled  castes  throughout   a particular State or the Union territory as well as parts  of that  State  or  Union territory, as the  case  may  be,  in relation  to  the  locality in which the  members  of  these castes etc. were residing.  This test of residence leads  to highly anomalous and unjust results which can be illustrated by a simple example.  If there are two brothers belonging to Jatav  caste who are equally qualified to be employed  in  a particular  service or post in respect of which  reservation is  provided  for the members of the  scheduled  caste,  one living  in  district A in the State of  Madhya  Pradesh  can avail  of  that benefit whereas the other who  lives  in  an adjoining district B for which that caste is not included in the  Order  would  be  deprived  of  the  benefit  of   that reservation  which is for the whole State even though  there may  be no difference in the socioeconomic condition of  the caste  to which the brothers belong in the  districts  where they  reside.  Several other anomalies can arise because  it is  only  a  member  of a caste which  is  included  in  the statutory provisions or the Orders mentioned before who  can take   advantage   of   the  benefits   conferred   by   the constitutional provisions.  Article 341 of the  Constitution provides for specification of caste, race or tribe etc.  for the purpose of the Constitution in relation to that State or Union territory, as the case may be.  In the Twelfth  Report of the Commission for Scheduled Castes and Scheduled  Tribes 1962-63 it has been pointed out at page 12 that a person may belong to a caste or tribe declared to be a scheduled  caste in his originating State but who may have been residing  for a  long time in another State (say, for the sake of  service or business) where hi,; caste/ 644 tribe is not recognised as a Scheduled Caste/Tribe.  In  the relevant statutory provisions and Orders such a person would be denied the benefits under the Constitution even though he may  actually  continue to suffer from the  effects  of  the disabilities resulting from the practice of  untouchability. The  Commissioner suggested that they should be  treated  as eligible  for  benefits  made  available  to  the  scheduled castes/tribes in the home State etc. If  the  matter were res-integra we would have felt  a  good deal  of difficulty in reconciling with  the  constitutional provisions the scheme followed in the statute and the Orders concerned by which the same caste has been included in  some districts  of  the  same State and  excluded  in  the  other districts.   This  Court,  however,  has  in  Bhaiyalal   v. Harikishan Singh & others(1) made observations repelling the contention  that  under  Art. 341 of  the  Constitution  the President  was not authorised to limit the  notification  to parts  of  a  State.   The  reason  given  was  that   while

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specifying caste, race or tribe the President may well  come to  the conclusion that not the whole caste, race  or  tribe but part of or groups within them should be specified.  This would  be  so  where the President  is  satisfied  that  the examination  of the social and educational  backwardness  of the  race, caste or tribe justifies such specification.   It would  appear from the Tenth Report of the Commissioner  for Scheduled  Castes and Scheduled Tribes 1960-1961  (page  22) that  two  factors have been mainly taken into  account  for including  a particular caste, race or tribe in the list  of scheduled  castes  and scheduled tribes  i.e.  socioeconomic conditions and population figures. In  Bhaiyalal’s  case(1) the appellant’s election  had  been challenged on the ground that he belonged to the Dohar caste which  was  not  recognised as a  scheduled  caste  for  the district in question and so his declaration that he belonged to  the  Chamar  caste  which  was  a  Scheduled  Caste  was improperly and illegally accepted by the Returning  Officer. It was held that the plea that though the appellant was  not a Chamar as such he could claim the same status by reason of the  fact  that he belonged to Dohar caste which is  a  sub- caste of the Chamar caste could not be accepted.  An inquiry of  that kind would not be permissible having regard to  the provisions  contained in Art. 341 of the Constitution.   The case of Basavalingappa v. Munichinnappa(2) was referred  to. In that case it was laid down that generally speaking it was not  open to any person to lead evidence to  establish  that his caste includes or is the same as another caste which  is notified  in  the Order.  Following these two  decisions  it must be held that the turned candidate, in the present case, was not entitled to estab- (1) [1965] 2 S.C.R. 877. (2)  [1965] I S.C.R. 316. 645 lish that Jatav caste was the same as Chamar.  In this  view of  the  matter nothing else survives for  consideration  or decision. In  the  result  the  appeal (C.A.  2123/69)  fails  and  is dismissed.  The other appeal (C.A. 2237/69) not having  been pressed  is also dismissed.  Taking into  consideration  the entire circumstances we leave the parties to bear their  own costs in this Court. G.C Appeals dismissed. 646