Gujarat High Court
Employees’ Provident Fund … vs Ranjit Vasantlal Makwana on 17 July, 2026
NEUTRAL CITATION
C/SCA/21004/2016 CAV JUDGMENT DATED: 17/07/2026
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Reserved On : 21/04/2026
Pronounced On : 17/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21004 of 2016
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EMPLOYEES' PROVIDENT FUND ORGANIZATION & ORS.
Versus
RANJIT VASANTLAL MAKWANA
==========================================================
Appearance:
MR RAJESH K SAVJANI(2225) for the Petitioner(s) No. 1,2,3
HIMANSHI R BALODI(8919) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
SR. PAGE
HEADING
NO. NO.
FACTS LEADING TO THE FILING OF THIS
I 2
PETITION
II SUBMISSIONS ON BEHALF OF THE PETITIONER 4
SUBMISSIONS ON BEHALF OF THE
III 5
RESPONDENT
QUESTIONS WHICH ARISE FOR
IV 8
CONSIDERATION IN THIS WRIT PETITION
V A BRIEF OVERVIEW OF THE CASTE SYSTEM 8
CONSTITUTIONAL PROVISIONS RELATING TO
VI 11
SCHEDULED CASTES AND TRIBES
VI(a) In Part III 12
In Part XVI – RELATING TO SPECIAL
VI(b) PROVISIONS RELATING TO CERTAIN 14
CLASSES
In Part XVI RELATING TO SPECIAL
VI(c) PROVISIONS RELATING TO CERTAIN 15
CLASSES
SPECIFICATION OF SCHEDULED CASTES
VII 17
UNDER ARTICLE 341
VIII CHRONOLOGY OF THE SPECIFICATION OF 20
SCHEDULED CASTES BY THE PRESIDENT AND
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SR. PAGE
HEADING
NO. NO.
ITS MODIFICATION BY THE PARLIAMENT SINCE
1950 IN RELATION TO GUJARAT
EFFECT OF INCLUSION, MODIFICATION OR
IX EXCLUSION OF A CASTE FROM THE LIST OF 27
SPECIFIED CASTES UNDER ARTICLE 341
X RE: THE REASONING OF THE CAT 37
XI CONCLUSION 38
I. FACTS LEADING TO THE FILING OF THIS PETITION
1. Shri R.V. Makwana- respondent herein, was
appointed as a Lower Division Clerk (LDC) in the
Employees Provident Fund Organization, i.e. the
petitioner herein, on 7.4.1995.
2. The respondent secured this appointment under the
reserved category of Scheduled Caste since he belonged
to the Mochi caste and at that point in time, the Mochi
caste was specified as Schedule Caste in the State of
Gujarat by virtue of the Constitution Castes and
Scheduled Tribes Orders (Amendment) Act, 1976.
3. In the year 2002, the Constitution (Scheduled
Castes) Orders (Second Amendment) Act, 2002 was
enacted by the Parliament, by which, area restrictions in
respect of Mochis were introduced. By this amendment, it
was only those Mochis who hailed from Dang district and
Umbergaon taluka of Valsad district in Gujarat were
specified as Scheduled Castes.
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4. In other words, as against the earlier position of all
Mochis in Gujarat, being specified as Scheduled Caste,
the Parliament limited the specification of Mochi caste as
Scheduled Caste only to those Mochis who hailed from
Dang district and Umbergaon taluka of Valsad district.
5. On 31.12.2003, the respondent was promoted to the
post of Enforcement Officer/Accounts Officer on his
passing of the Departmental examinations, and this
promotion was on the basis that he belonged to the
reserved category i.e., he belonged to the Schedule
Caste.
6. On 29.11.2012, nine years after he had been
promoted, the respondent was reverted to his substantive
post of Upper Division Clerk with effect from 29.11.2012.
This reversion was on the ground that he could not be
specified as a Scheduled Caste by virtue of the 2002
Amendment.
7. The respondent, being aggrieved by this reversion,
approached the Central Administrative Tribunal (CAT) by
filing O.A.No.498 of 2012.
8. The Tribunal, by the impugned order, took the view
that the vacancy to the post to which the respondent
herein had been promoted had arisen in 2000, when all
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Mochis in Gujarat had been specified as Scheduled Caste,
and therefore, the order of promotion granted to him was
legal and valid. The Tribunal accordingly allowed the
application and restored the promotion of the respondent.
9. As a consequence, the EPFO is before this Court
questioning the order of the Tribunal.
II. SUBMISSIONS ON BEHALF OF EPFO-THE
PETITIONER:
10. Shri Rajesh K. Savjani, learned counsel appearing
for the petitioner- EPFO contended that as on the date
the respondent was promoted, i.e., in 2003 he could not
be specified as Scheduled Caste because of the 2002
Amendment, which specified only Mochis from a specified
area to be Schedule Castes and, therefore, he could not
have had the benefit of reservation. He submitted that the
classification of vacancy in the year 2000 would be of no
consequence and it would only be the date of promotion
that would be relevant date for the purpose of
considering the reserved category status of a candidate.
He submitted that since people hailing from the Mochi
caste only from two districts were specified as Scheduled
Caste from 17.12.2002, all other Mochis in the State
could not claim to be a caste specified in the Scheduled
Caste and claim to be entitled to the benefits thereof. He
submitted that the reservation that the respondent was
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entitled to when his caste was specified, would only
ennure to his benefit till the caste remained specified in
the Constitution (Scheduled Castes) Order and the
moment the caste was excluded from the Presidential
Order by the 2022 Order, he would lose all the benefits
that accrue to a reserved candidate.
11. Learned Counsel placed reliance on the following
citations:
1. Shree Surat Valsad Jilla KMG Parishad v. Union of India
[(2007) 5 SCC 360]
2. In the case of Union of India v. Krishna Kumar & Ors
[(2019) 4 SCC 319]
3. Bihar Sate Electricity Board & Ors. v. Dharamdeo Das
[(2024) SCC Online SC 1768]
4. K. Kirmala & Ors. v. Canara Bank & Anr. [(2024) SCC Online
SC 2273]III. SUBMISSIONS ON BEHALF OF THE
RESPONDENT:
12. Ms. Himanshi Balodi, learned counsel appearing for
the respondent, on the other hand, contended that the
order of the Tribunal cannot be found fault with since
promotion is always considered with reference to the date
on which the vacancy arose and not on the date on which
the promotion is actually effected. She, therefore,
submitted that the order of the CAT considering the date
on which the vacancy arose as being the relevant date for
granting promotion, was correct and since Mr. Makwana
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(respondent herein) belonged to Scheduled Caste on that
date, his promotion cannot be found fault with.
13. Learned counsel Ms. Balodi also went on to
elaborate and contended that once a caste is specified as
a Scheduled Caste in the manner specified in Art 341 of
the Constitution, all people born into that caste, at that
point in time, are vested with a constitutional right, which
confers various benefits of reservation in matters relating
to education, employment, etc during the course of their
entire life.
14. She submitted that caste is conferred by birth and
therefore, any person born into a caste which is specified
as Scheduled Caste will carry that benefits throughout his
lifetime. She emphasized that the conferment of the
status of caste is by virtue of the birth into that caste and
it is an involuntary act, which, in turn, is permanent and
confers certain constitutional rights. She submitted that
this right which vests on a person’s birth can neither be
altered nor divested because of any future event.
15. It is contended that a person born into a caste has
no option but to remain in that caste and he is always
identified as a person belonging to that caste during his
entire life. She, therefore, submitted that if a person is
born into a caste and if that caste is specified as
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Scheduled Caste at the time of his birth, that candidate
will always have the benefit of being specified as a
Scheduled Caste throughout his lifetime and
consequentially be entitled to the benefits that accrue by
virtue of reservations in employment and education.
16. Learned counsel Ms. Balodi submitted that the
exclusion of a caste from the Scheduled Castes in the
manner specified under Art 341 would only mean that a
person who is born into the caste after the exclusion will
not get the benefit of reservation, and this is simply
because a person is born into a caste and therefore, the
date on which he is born into that caste becomes the only
relevant factor for the purpose of considering whether he
can be specified as a Scheduled Caste or not.
17. Learned counsel Ms. Balodi also submitted that
when the respondent was born into the Mochi caste,
constitutionally, he was deemed to be a Scheduled Caste
and if such a constitutional status is granted to a person,
the same cannot be nullified after a certain period of time
merely because that caste is no longer required to be
specified as a Scheduled Caste. In short, she submitted
that once a person is conferred the status of Scheduled
Caste, he would have the benefit of reservations
throughout his lifetime, and the benefit of reservation
cannot be withdrawn or modified during his lifetime.
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CONSIDERATION IN THIS WRIT PETITION:
A. What are the rights that accrue to a person who is
born into a caste, which at the time of his birth, was
specified as a Scheduled Caste under Art 341 of the
Constitution of IndiaB. Whether these rights that accrue on him would stand
vested with during his entire lifetime or whether it is
a temporary right, which could be divested at any
time or during his lifetime?
C. Whether the order of the Tribunal considering the
date on which the vacancy arose as the relevant date
for determining the reserved category of Makwana
was justified or not?
V. A BRIEF OVERVIEW OF THE CASTE SYSTEM:
18. Historically, people in our Society were categorized
into four classes called Varnas, which was based on their
respective vocations, probably with a view to maintain
social order and harmony. However, over a period of
time, these four classes of people have transformed
themselves into a hereditary structure i.e., Castes (Jatis).
What started off as a group of people, who stood
identified by their vocation has morphed itself into a
social group of people, the entry to which is only by birth
and not by the avocation or the ability of the group of
people. In other words, entry into a case is only by birth
and exit is either by excommunication or by conversion
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into another religion.
19. A caste, in our country, is purported to be a social
grouping. However, Dr. B. R. Ambedkar has described the
caste as nothing but graded inequality and he stated that
it was not a division of labour, but it was a division of
labourers.
20. It cannot be in dispute that though the origin of
caste was related to the avocation of the people and all
people who had the same avocation were classified as a
particular caste, but the people of this caste, over a
period of time, sequestered themselves or were more
likely bracketed into a distinct group by the other
castes/groups in the Society. Thus, this group became a
closed group who intertwined amongst themselves and
married only within the group. As a consequence, no one
else was allowed to enter into it. Simply put, an avocation
defined a group, and this group became a caste, which
then became a part of a social hierarchy.
21. The entry into this group i.e., into a caste is only by
birth. In other words, a person cannot acquire or become
a member of the caste voluntarily, even if he has learnt
the skills or the trade of the said avocation. The entry into
the caste is an involuntary act, which is pre-determined
and it is conferred solely on the birth of the person into a
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particular caste to which his parents belong. The
moment, a person is born into a caste, social boundaries
of the caste envelop that person, and he becomes a part
of a social group.
22. This social group or groups, over a period of time,
have evolved into a hierarchy of superior and inferior
castes. The castes in the lower hierarchy have gradually
been oppressed and have been treated as an inferior
group of people by the caste in the upper hierarchy. The
castes in the lower hierarchy has, in fact, been treated in
the most inhuman manner possible by the people
belonging to the castes in the upper hierarchy with the
intention of subduing them or with an intention of
retaining their superiority or a mixture of both. This kind
of oppression of a person who acquires a lower caste by
birth has ultimately led to special provisions being
created and formulated to end this oppression, protect
them and also to elevate their status in our Society, when
our constitution was framed.
23. One thing is certain and that is, the acquisition of
caste is by birth, and this caste stands attached to a
person till he is alive. The only exception to this caste
identity is if that person converts to another religion or is
excommunicated by the other members of his caste.
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24. It may also be pertinent to state here that the term
caste has not been defined in the Constitution or any
other statute and the Constitution has been framed
keeping in mind caste as an existing reality and would
have to be dealt with keeping in mind the constitutional
principles. In the case of Indra Sawhney and Others v.
Union of India and others reported in 1992 Supp(3)
SCC 217, the Apex Court has defined caste thus:
“The above material makes it amply clear that a
caste is nothing but a social class – a socially
homogeneous class. It is also an occupational
grouping, with this difference that its membership is
hereditary. One is born into it. Its membership is
involuntary. Even if one ceases to follow that
occupation, still he remains and continues a member
of that group. To repeat, it is a socially and
occupationally homogenous class. Endogamy is its
main charateristic. Its social status and standing
depends upon the nature of the occupation followed
by it. Lowlier the occupation, lowlier the social
standing of the class in the graded hierarchy.”
25. Thus, viewed in this backdrop, for the purpose of
this case, it becomes strikingly clear that the moment, the
respondent herein was born into the Mochi caste, the
acquisition of the caste was a permanent one and he
would have to be considered as a Mochi throughout his
lifetime.
VI. AN OVERVIEW OF THE CONSTITUTIONAL
PROVISIONS RELATING TO SCHEDULED
CASTES
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VI(a). In PART III
26. Article 15 prohibits the discrimination on the
grounds of religion, race, caste, sex or class of birth by
the State and forbids any kind of disability, liability,
restriction or condition in relation to the access to shops,
public restaurants, hotels and places of public
entertainment and also from the use of wells, tanks,
bathing ghats, roads and places of public resort
maintained by the State or with State funds. Thus, the
practice of discriminating or excluding people because of
their caste is specifically provided in the Constitution,
thereby, making the intent of treating every citizen
equally.
27. Article 15 (4), however, permits the State from
making any special provision for the advancement of any
socially or educationally backward classes of citizens or
for the Schedule Castes or Schedule Tribes.
28. Article 16 declares that there shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the State
and that there shall be no discriminated or be considered
ineligible for employment only because of caste or
religion or race.
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29. Article 16 (4), however, permits the State from
making any provision for reservation of appointments or
posts in favour of backward class or classes which in the
opinion of the State is inadequately represented in the
services under the State.
30. Article 16 (4A) permits the State from making a
provision for reservation in matters relating to promotion
along with consequential seniority in favour of Scheduled
Castes or Scheduled Tribes, which in the opinion of the
State are inadequately represented in the services under
the State.
31. Article 17 of the Constitution of India abolished
untouchability and made enforcement of any disability
arising out of untouchability to be an offence punishable
in accordance with law. The practice of any form of
untouchability was forbidden. Untouchability was,
obviously, in relation to the oppressed class, i.e., those
classes which were considered to be untouchable and
who were to be kept out of society and isolated.
32. Thus, Part III of the Constitution relating to
Fundamental Rights specifically prohibits discrimination
on the grounds of caste while at the same time they also
permit the State to make reservations for the
advancement of socially and educationally backward class
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or classes and also specifically permits the State to make
special provisions not only for reservation of
appointments or posts but also to their promotions for the
services under the State to any backward class of citizens
or for Scheduled Castes or Tribes. The Constitution
fundamentally recognizes the prevalence of caste in the
Country and also seeks to remedy the ill effects of it by
making provisions which permit their upliftment by way
of affirmative action.
VI(b). In PART IV i.e., DIRECTIVE PRINCIPLES OF
STATE POLICY
33. Art. 46 of the Constitution states, a directive
principle, states that the State should promote with
special care the educational and economic interests of the
weaker sections of the people and in particular of the
Scheduled Castes and the Scheduled tribes and it should
protect them from social injustice and all forms of
exploitation. The State, is therefore required to be
guided, by the principle that the weaker sections of the
society and more particularly the persons belonging to
Scheduled Caste and Scheduled Tribe should be
protected from any social injustice and from exploitation,
thereby meaning that they required extra attention so as
to achieve the objective of the preamble to secure social
justice to all.
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34. Apart from the above special provisions made in
Part III, Part XVI contains special provisions relating to
certain classes. The provisions of this Part provide for
reservation of seats for Scheduled Caste and Scheduled
Tribes in the house of the people and in the Legislative
Assemblies of the States (i.e. Article 330 and Article 332).
35. Article 334 of the Constitution begins with a non-
obstante clause and goes on to declare that the
reservation of seats for Scheduled Castes and Scheduled
Tribes shall cease to have effect on the expiration of 80
years. This period, at the framing of the Constitution, was
10 years and has been extended by several amendments
made by the Parliaments. This would indicate that though
the framers intended for the reservation of seats to be
only for one decade, the law makers, in their wisdom
have been extending the period continuously and this
would mean that the lawmakers are clear that the castes
specified as scheduled castes have still not progressed
enough socially and still require affirmative action to
achieve social justice.
36. It would be significant to note that though a time
limit for reservations to the scheduled castes and tribes
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have been specified in the House of the people and the
legislative assemblies in the State i.e., political
reservations, there is no such time limit prescribed for
reservations in education or in the services under the
State. This would indicate that the framers of the
Constitution were of the view that the reservations in
these sectors would be a necessary feature and cannot be
subjected to a time frame.
37. Article 335 of the Constitution stipulates that the
claims of the members of the Scheduled Caste and
Scheduled Tribes should be taken into consideration
consistently with the maintenance of efficiency of
administration in the making of appointments to services
and posts in connection with the affairs of the Union or of
the State.
38. The proviso to this Article declares that nothing in
the Article would prevent the making of any provision in
favour of members of the Scheduled Caste and Scheduled
Tribes for relaxation in qualifying marks in any
examination or lowering the standards of evaluation for
reservation in matters or promotion to any class or
classes of service or posts in connection with the affairs
of the Union or of the State.
39. Thus, there are several articles in the Constitution
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which provide for reservation in matters of recruitment
and promotion for services under the State and there are
also provisions for making reservations in the educational
field and also to the Legislative bodies. It also provides
for the making of laws which lower the standard
benchmarks to the scheduled castes in order to give them
a nudge to advance themselves. These provisions reflect
the clear constitutional mandate for the enhancement of
the socially and educationally backward classes and also
for the scheduled castes and tribes.
40. Article 338 of the Constitution requires the
formation of a National Commission for Scheduled castes
which is tasked with duty to safeguard the interests of the
Scheduled caste by monitoring and investigating all
matter relating to the Scheduled Castes and also dealing
with the complainants of deprivation of rights and
safeguards provided to them.
VII. SPECIFICATION OF SCHEDULED CASTES
UNDER ART. 341
41. Article 341 of the Constitution of India reads as
follows:
“(1) The President may with respect to any State or
Union territory, and where it is a State, after
consultation with the Governor thereof, by public
notification, specify the castes, races or tribes orPage 17 of 38
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parts of or groups within castes, races or tribes
which shall for the purposes of this Constitution be
deemed to be Scheduled Castes in relation to that
State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude
from the list of Scheduled Castes specified in a
notification issued under clause (1) any caste, race
or tribe or part of or group within any caste, race or
tribe, but save as aforesaid a notification issued
under the said clause shall not be varied by any
subsequent notification.”
It specifically deals with Scheduled Caste and it
states that the President in respect of a State or
Union Territory by issuance of public notification
specify; (i) castes, (ii) races or tribes and (iii) parts
or groups within castes, races or tribes, which would
be deemed to be Scheduled Caste for the purposes
of the Constitution in relation to the State or the
Union Territory, as the case may be. This Article
requires the President to consult the Governor, in
case of a State, before issuance of the public
notification. Thus, the Constitution itself provides for
the President, to initially, specify those castes which
are to be considered as scheduled castes and tribes
and also prescribes a procedure.
42. After the President initially specifies the castes
which are to be deemed as Scheduled Castes and
Scheduled Tribes, consciously the power to add, modify
or exclude castes from the deemed scheduled castes or
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tribes is conferred only on the Parliament under Art 341
(2). This article specifically states that it is only as per the
procedure prescribed under Art 341 (2) that is to be
followed for exercising this power to amend, modify or
exclude any case from the list of scheduled caste or
tribes.
43. As noticed earlier, reservation to the house of people
and the legislative assemblies in states have been
subjected to a time limit i.e., political reservations were
to be provided only for a short time. Initially, the period
for providing reservation was to be 10 years, but the
same has been continued for 80 years. This would imply
that the Parliament acknowledges that the oppressed
classes still required protection and uplfitment in order to
secure social justice to them.
44. However, there is no such time frame for the
reservations in the field of education and for services
under the state. This does not mean that the reservations
to the specified castes or scheduled tribes was
necessarily a permanent feature. The benefit of
reservation was sought to be regulated, in future, by
empowering the Parliament to include, modify or exclude
the castes from the list of scheduled castes which had
been specified by the President.
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45. Interestingly, the powers to include, modify or
exclude a caste from the list of scheduled castes is not
conferred to the legislative assemblies of the State but is
expressly conferred on the Parliament thereby meaning
that the tinkering with the list of specified castes is
considered as a national issue and cannot be permitted to
be regulated by the States, which may have a partisan
approach in this regard.
46. Thus, the Constitution enables only the Parliament
to tinker with the inclusion, exclusion or modification of
the castes which are deemed to be scheduled castes or
scheduled tribes. This procedure highlights the
importance that the Constitution attaches to achieving
the objective of attaining social justice as proclaimed in
the Preamble.
47. A 7 judge bench of the Apex Court in the case of
State of Punjab and others v. Davinder Singh and
others reported in (2025) 1 SCC 1 has declared that it
is only the Parliament which can amend the list specifying
the scheduled castes and the States can only sub-classify
the scheduled castes for ensuring that the reservations
reach all the castes included in the list of scheduled
castes.
VIII. CHRONOLOGY OF THE SPECIFICATION OF
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SCHEDULED CASTES BY THE PRESIDENT AND ITS
MODIFICATION OR EXCLUSION BY THE PARLIAMENT
SINCE 1950 IN RELATION TO THE STATE OF
GUJARAT
48. In exercise of the power conferred under Article
341 (1), the President issued a notification titled
Constitution Scheduled Caste Order, 1950 after
consulting the Governor (Raj Pramukh at that point in
time). Under this Order, the President specified the
castes, which are deemed to be scheduled castes and
tribes for the State of Bombay. This State of Bombay
included the areas which were to be later reorganized
and which was to become the state of Gujarat. In other
words, the State of Bombay, described in the notification,
included the present State of Maharashtra and the
present State of Gujarat in its entirety.
49. Part-III of 1950 Order, in relation to State of
Bombay, read as follows:
“1. Throughout the State:-
1 Ager
2 Asodi
3 Bakad
4 Bhambi
5 Bhangi
6 Chakrawadya-Dasar
7 Chalvadi
8 Chambhar, or Mochigar, or Samagar
9 Chena-Dasaru
10 Chuhar or Chuhra
11 Dakaleru
12 Dhegu-Megu
13 Dhor
14 GarodaPage 21 of 38
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15 Halleer
16 Halsar, or Haslar, or Hulsavar
17 Holaya, or Garode
18 Kolcha, or Kolgha
19 Lingader 20 Machigar
21 Madig, or Mang
22 Mahar
23 Mahyavanshi
24 Mangarudi
25 Meghval, or Menghwar
26 Mini Madig
27 Mukri
28: Nadia
29. Rohit
30 Shenva, or Shindhaya
31 Shingdav, or Shingadya
32 Sochi
33 Timali
34 Turi
35 Vankar
36 Vitholia
2. Throughout the State except in Gujarat division: –
Mochi”
50. Thus, in the entire State of Bombay, except the
Gujarat division, all Mochis were specified as Scheduled
Caste. To put it differently, Mochis in the Gujarat division
were not specified as Scheduled Caste.
51. The President issued the Scheduled Castes and
Scheduled Tribes List (Modification) Order, 1956,
pursuant to Section 41 of the States Reorganization Act,
1956 and Section 14 of the Bihar and West Bengal
(Transfer of Territories) Act, 1956, which modified the
earlier 1950 order.
52. The 1950 Order was modified in the manner
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specified in Schedule-I, II, III and IV of the said Order.
53. Schedule-I of this Modification Order substituted
Parts-I to XVI of the 1950 Order with Parts- I to XIII. Part-
IV of the Schedule related to the State of Bombay and
Clause 2 of this Part IV reads as follows:
“2. In the districts of Greater Bombay, West Khandwa, East
Khandwa, Dangs, Nasik, Ahmednagar, Poona, Satara
North, Satara South, Kolhapur, Sholapur, Thana,
Kolkata and Ratnagiri:
Mochi”
54. Thus, geographical restrictions were imposed by this
modification of the year 1956 and only Mochis who
belonged to the above-mentioned areas were specified as
Scheduled Caste. In other words, Mochis, as against the
earlier specification of all Mochis in the State of Bombay
(except Gujarat Division), Mochis only in the specifically
named areas came to be specified as Scheduled States.
55. In the year 1960, the State of Bombay was re-
organized and the State of Gujarat and the State of
Maharashtra were created. Under this Act, the areas
comprised of Dangs and the villages in Umbergaon taluka
of Valsad district became part of the State of Gujarat.
56. Section 26 of the Bombay Re-organization Act also
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amended the Constitution (Scheduled Castes) Order,
1950 as per Schedule-VII of that Act. By virtue of this
Amendment, Part-IV of the 1950 Order was substituted
and with reference to the State of Gujarat, in Clause-2, it
was specified as follows:
“2. In the district of Dangs and Umbergaon Taluka of Surat
district;
Mochi”.
57. Thus, on the creation of the State of Gujarat, only
Mochis who hailed from the districts of Dangs and
Umbergaon taluka of Surat district were specified as
Scheduled Caste. To put it differently, all Mochis in the
State of Gujarat were not specified as Scheduled Caste
and Mochis only from the aforementioned two areas were
specified as Scheduled Caste.
58. On 18.9.1976, the Parliament enacted the Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act,
1976, by which the 1950 Order was amended by Section
3 of the Act and to the extent specified in Schedule I of
the said Act. By this, in part 4 of the schedule, pertaining
to Gujarat, Mochi caste was specified.
1. Ager 16. Lingader
2. Bakad, Bant 17. Mahar, Taral, Dhegu Megu
3. Bawa-Dedh, Dedh-Sadhu 18. Mahyavansi, Dhed, Dhedh,
Vankar, Antyaj Maru Vankar,
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4,. Bhambi, Bhambhi, Asadaru, 19. Mang, Matang, Minimadig
Asodi, Chamadia, Chamar,
Chambhar, Chamgar, Hara-
layya, Harali, Khalpa, Machi-
gar, Mochigar, Madar, Madig,
Mochi, Nalia, Telegu Mochi,
Kamati Mochi, Ranigar,
Rohidas, Rohit, Samgar
5. Bhangi, Mehtar, Olgana, Rukhi, 20. Mang-Garudi
Malkana, Halalkhor, Lalbegi,
Balmiki, Korar, Zadmalli
6. Chalvadi, Channayya 21. Meghval, Meghwal, Mengh-
var
7. Chenna Dasar, Holaya Dasar 22. Mukri
8. Dangashia 23. Nadia, Hadi
9. Dhor, Kakkayya, Kankayya 24. Pasi
10. Garmatang 25. Senva, Shenva, Chenva,
Sedma, Rawat
11 Garoda, Garo 26. Shemalia
12 Halleer 27. Thori
13 Halsar, Haslar, Hulasvar, 28. Tirgar, Tirbanda
Halasvar
14. Holar, Valhar 29. Turi
15. Holaya, Holer 30. Turi Barot, Dedh Barot
59. As there were no geographical limitations imposed
to the people belonging to Mochi caste, as had been
imposed in the 1950 order and the 1956 order, Mochis all
over the State of Gujarat came to be specified as
Scheduled Castes.
60. In other words, from 18.9.1976 all the Mochis in the
State of Gujarat were specified as Scheduled Castes by
way of a Parliamentary law made in pursuance of the
powers conferred under Art 341 (2) of the Constitution.
The legal inference of this modification made in 1976
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would be that the Parliament was of the view that all the
Mochis in the State of Gujarat which had been created 16
years ago in 1960, were still socially backward and
required to be extended the benefits of reservation.
61. On 17.12.2002, the Parliament enacted the
Constitution (Scheduled Castes and Scheduled Tribes)
Orders (Second Amendment) Act, 2002. By this
amendment, Part IV of Schedule 1 of the 1950 Order,
which related to Gujarat, entry was substituted as
follows:
“4. Bhambi, Bhambhi, Asadaru, Asodi,
Chamadia, Chamar, Chamar-Ravidas, Chambhar,
Chamgar, Haralayya, Harali, Khalpa, Machigar,
Mochigar, Madar, Madig, Mochi (in Dangs district
and Umergaon Taluka of Valsad district only), Nalia,
Telugu Mochi, Kamati Mochi, Ranigar, Rohidas,
Rohit, Samgar”
62. As could be seen from the above, by this
amendment, geographic restrictions, as was prevailing
before 1976, was imposed on Mochis and only those
Mochis who hailed from Dang district and Umergaon
Taluk of Valsad District were only specified as Scheduled
Castes.
63. The legal inference of this modification would be
that the Parliament was of the view that people belonging
to the Mochis only from certain areas were socially
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backward and needed the benefits of reservation to be
uplifted. This would mean either of two things. Firstly,
that Mochis from other areas of Gujarat had advanced
socially and did not require the benefit for their upward
social mobility or the removal of geographical restrictions
was an error. Irrespective of the reason for the
modification, viewed from a legal angle, the fact remains
that Mochis all over the State of Gujarat were specified as
Scheduled castes for 28 long years i.w., more than a
quarter of century.
64. In short, the legal implication of this amendment is
that the Parliament was of the view that only Mochis from
two specified areas needed the benefit of reservation.
65. Thus, the historical journey of specifying Mochis as
Scheduled Castes can be summarised by stating that in
1950 Mochis only from specified areas had been specified
as Scheduled castes and this situation prevailed till 1976
and from 1976 to 2002 i.e., for 28 years, Mochis
throughout the State of Gujarat, without any geographical
restrictions had been specified as Scheduled Castes and
from 2002 onwards Mochis only from specified areas
have been specified as Scheduled Castes.
IX. EFFECT OF INCLUSION, MODIFICATION OR
EXCLUSION OF A CASTE FROM THE LIST OF
SPECIFIED CASTES UNDER ART 341
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66. What would be the fate of the Mochis who were born
between 1976 and 2002 in the State of Gujarat when
Mochis had been specified as Scheduled castes would be
the question that arises for consideration, more so,
because from 2002, Mochis only from specified areas
have been specified as Scheduled Castes?
67. What would be the fate of those Mochis who had
lawfully take the benefit of reservation by virtue of their
caste being specified as Scheduled castes in this period of
26 years i.e., over a quarter of century?
68. Would they lose their right to gain the benefit of
reservation, or would they have a vested right to continue
to receive the benefit of reservation that had been
constitutionally conferred on them?
69. The answer to these questions, in our view, would
basically depend on the legal effect of specifying a caste
as a Scheduled caste by a Parliamentary law which
amended the original list specified by the President in
1950.
70. First of all, the power to include, modify or even
exclude a caste from being specified as Scheduled caste
is specifically conferred on the Parliament under Art 341
(2). This means that the law recognizes that the exercise
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of specifying castes as a Scheduled caste is not a one
time event and specifying a caste as a Scheduled Caste
need not be permanent and the Parliament, if it so chose,
could either add a caste to the specified lists of Scheduled
caste or even modify an existing caste and could also
altogether remove an entire caste from the list.
71. In the event of adding to the list, it is obvious that
from the date the caste is added, all the members of the
caste would become entitled to claim the benefits of
reservation. This would be basically because the entire
caste, at the time of its inclusion in the list, was being
considered as socially backward and thereby required the
benefit of reservation to move out of their social
backwardness.
72. In the event of modifying or excluding a caste from
the list of specified scheduled, a vexed question would
arise regarding the status of the people who had availed
the benefit of reservation in the interregnum. Basically,
from the date of modification or exclusion, the members
of the castes would lose the right to claim the benefit of
reservation because the Parliament did not consider them
to be socially backward and they had progressed
probably because they had availed the benefits of
reservation and the reservation had thus fulfilled its
objective.
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73. However, whether the people who had availed the
benefit of reservation lawfully, when their caste had been
specified as a Scheduled caste, would lose the benefit of
reservation on the day their caste was excluded from the
list of scheduled castes, would be the moot question.
74. In our view, the answer to this query would depend
on the manner in which a caste is imposed on an
individual and the nature of right that is conferred on a
member of the caste, which has been specified as a
Scheduled caste and also the right that accrues to a
person who has taken the benefit of reservation by virtue
of his caste having been specified as a Scheduled caste,
even though he had been born prior to the 1976
amendment.
75. As discussed earlier, a man acquires a caste the
moment he is born and this is an involuntary act over
which he has no control. The acquisition of caste at the
time of his birth remains with him for the rest of his life.
Thus, caste is an identity which adheres to a man from
the time of his birth and endures during his entire life.
76. If a person is born into a caste, which had been
specified as a Scheduled caste at the time of his birth,
this would mean that his caste was considered as socially
backward at that point of time and required the benefits
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of reservation. This would also mean that this person
would continue to be socially backward during his entire
life even though his caste, as a whole, could in future,
advanced socially, as a consequence of which, the
Parliament could decide to exclude the entire caste from
gaining the benefits of reservation.
77. This would also apply to a person, who though born
earlier to his caste being specified as a scheduled castes,
takes the benefit of reservation by virtue of the fact that
his caste was specified as a Scheduled caste after he was
born and he had as a consequence availed of the
reservation.
78. The exclusion of a caste from the list of scheduled
castes can only be prospective and the benefits that had
accrued on a person who had been born into the caste
when it was included in the list of scheduled castes would
continue to adhere to him during his life time. This is
fundamentally because caste is acquired by birth and
comes to an end only on the death of the person.
79. The very purpose of the President, initially in 1950,
to specify a caste to be deemed to be a Scheduled caste is
that the President after consultation with the concerned,
was satisfied that, a particular caste was oppressed and
deserved to be given the benefit of reservation so to
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enable that members of the caste to advance in society
and thereby uplift their lives socially and economically.
80. The framers of the Constitution were also conscious
of the fact that the castes specified as Scheduled castes
would not remain backward or oppressed forever and the
benefits conferred on them by specifying them as
scheduled castes would have lead to an improvement in
their social and economical status in society and since the
benefit of reservation granted to them had served its
purpose, the Parliament was conferred with the power to
modify or even exclude that caste from being specified as
a Scheduled caste.
81. This would basically mean that the period during
which the caste had been specified as Scheduled caste,
the members of the caste were considered as oppressed
and weak who required the benefit of reservation. This,
however, should not mean that the persons who had
taken the benefit of reservation will loose the benefit
midway on the assumption that the social status of his
caste had improved their economical and social status.
The caste, on the whole, during the period that it was
specified as a scheduled case, could have improved
necessitating the withdrawal of the benefit of reservation.
82. However, the fact remains that the person who was
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born during the period in which his caste was specified as
a Scheduled caste, and a person who availed the benefit
of reservation because his caste had been specified as a
schedule caste would be a person who was considered as
oppressed and backward at the time of birth and at the
time his caste was specified as a schedule caste and
would therefore be in need of the benefits of reservation
throughout his life. This is fundamentally because a caste
is thrust upon a person at the time of his birth and would
continue till his death and as a consequence any person
who is born into a caste, which at that time was specified
as a scheduled caste, will have to be considered as a
person belonging to a Scheduled caste till his death.
83. It will also have to be noticed that a person who is
born into a caste acquires a vested right to gain the
benefits of reservation because of the fact that his caste
had been specified as a Scheduled caste when he was
born. Similarly, when a caste is specified as a Scheduled
caste, all the persons who belong to that caste at that
point in time also acquire a vested right to be considered
as a Scheduled caste. This right, in fact, would be a
constitutionally protected right and this constitutional
right cannot be divested by a Parliamentary law. It must
be borne in mind that once a right vests in a person, a
subsequent law cannot divest that right and this principle
would apply with greater force when it comes to a right
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which is vested constitutionally.
84. This proposition, in our view, would do away with
any adverse impact on an individual who was conferred a
constitutional right to secure the benefits of reservation
for uplifting his life. A contrary view that a person would
loose all the benefits of reservation that was initially
conferred on him on his caste being excluded from the
specification as a scheduled case, would basically mean
that the law seeks to abandon an individual midway and
expect him to fend for himself, and that too after
promising him a secured and bright future. Such an
interpretation of the effect of a Parliamentary law, in
essence, would mean that a person who had been granted
a constitutional right would lose that constitutional right
and be left in the lurch because of a Parliamentary law.
This interpretation of a parliamentary law would be
constitutionally immoral.
85. In our view, in order to limit the adverse impact of
excluding a caste from being specified as a Scheduled
caste by a Parliamentary law, it would be appropriate to
hold that the persons born into a Scheduled caste, when
it had been specified as Scheduled caste or a person who
had taken the benefit of reservation because his caste
had been specified as a Scheduled caste at that point in
time, will be entitled to all the benefits of reservation
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during his entire lifetime and would not loose it midway.
Consequentially, any person who is born into a caste
which was not specified as a scheduled case at the time of
his birth (even though his caste was previously specified
as Scheduled caste) will not be entitled to any benefit of
reservation.
86. This may result in certain incongruous situation,
such as a father would be considered as belonging to a
Scheduled caste but his son who was born after the caste
was excluded from the list of specified Scheduled caste,
would not have the benefits of reservation. However, it
has to be kept in mind that the Parliament has been
conferred with the power to exclude a caste from the list
of scheduled castes taking into consideration the events
that have transpired after the inclusion which does not
justify the inclusion to be continued. This would mean
that the persons have been born into a caste which has
progressed and does not need the benefit of reservation.
This, in our view, is the only manner to ensure that the
benefits of reservation that flow from a caste being
specified as a Scheduled caste can be harmonized and
any adverse affect is avoided by the exclusion of a caste
from the list of scheduled castes.
87. We answer Questions A and B accordingly.
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88. In the instant case, since the respondent was born
into the Mochi caste which had been specified as a
Scheduled caste and had taken the benefit of reservation
when his caste had been specified as a scheduled caste,
he would be entitled to all the benefits of reservation
throughout his lifetime and he cannot be deprived of the
benefit of reservation by the exclusion of his caste from
the list of Scheduled caste. Consequently, he would be
entitled to the benefit of promotions by virtue of being a
person belonging to the Scheduled caste throughout his
tenure. As a result, the stripping of his promotion granted
in 2003 by passing an order of reversion in 2012 cannot
be sustained.
89. The reliance placed by the learned counsel
appearing for the petitioner on the judgment rendered by
the Apex Court in Shree Surat Valsad Jilla KMC
Parishad vs UOI and ors while deciding the challenge
to the order of this Court upholding the imposition of
geographical area restrictions to the Mochis, to contend
that the moment the 2002 amendment, the Mochis who
hailed from areas other than Dang district and Umargaon
Taluka of Valsad District would lose the benefit of
reservation, would not be correct.
90. In the said case, the Apex Court while upholding the
2002 amendment has also stated that in relation to a case
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pertaining to a grant of dealership, reserved to the
Scheduled caste candidates, as the appellant therein
stood excluded from the list of scheduled castes because
of the 2002 amendment, he would not be entitled to
retain the dealership because only a letter of intent had
been issued to him.
91. At the outset, it is to be stated here that the
entitlement to a dealership cannot be equated with the
reservation accorded to an employment under the
services of the state. In the case of employment, a
candidate from a Scheduled caste would acquire a vested
right, the moment he is born, to claim the benefit and
once he claims the benefit of reservation, he also acquires
a vested right to be considered as a Scheduled caste
throughout his career. In the case of a dealership, there
is no question of any vested right, and it is only a benefit
which is temporary as the dealership would not be
permanent as such benefit was only secured by a Letter
of Intent. We are therefore of the view that this judgment
would be of no avail.
X. RE: THE REASONING OF THE CAT
92. The Tribunal has taken the view that the
respondent’s caste had been specified as a Scheduled
caste as on the date the vacancy for the promotional post
arose and therefore the promotion accorded to him
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cannot be found fault with it. In the view that we have
taken that the respondent would have the benefit of being
considered as a person belonging to a Scheduled caste
during his entire lifetime, he would be entitled to the
benefits of reservation throughout his career.
Consequently, the question of whether reservation is to
be taken into consideration on the day that the vacancy
arose and not on the day it was granted would be
irrelevant and as a result the stripping of the promotion
and the reversion of the petitioner cannot be sustained.
93. We answer Question C accordingly.
XI. CONCLUSION
94. Consequently, in the light of the view taken by us,
the order of the CAT which ultimately protects the
promotion granted to the respondent, for the reasons
given by us herein above, deserves to be affirmed and as
a result the writ petition filed by the employer is
DISMISSED.
Sd/-
(N.S.SANJAY GOWDA,J)
Sd/-
(J. L. ODEDRA, J)
OMKAR
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