Dhangar Reservation - HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.32.

Case :- WRIT - C No. - 40462 of 2009

Petitioner :- All India Dhangar Samaj Mahasangh U.P. And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- R.C. Sinha,P.N. Saksena
Respondent Counsel :- C.S.C.

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Hon'ble Ashok Bhushan,J.
Hon'ble Mrs. Sunita Agarwal,J.
(Per Hon'ble Ashok Bhushan, J.)


This writ petition raises an important question relating to identity and characteristic of a scheduled caste (Dhangar) included at Entry 27 of the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as the 1950 Order) as amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. The authoritative translation within the meaning of Section 5 of the Official Languages Act, 1963 gazetted in the Gazette of India spelled Entry 27 "Dhangar" as "/kaxM+" following which the State of U.P. issued various orders including the order dated 17th July, 2009 to read the Entry 27 "Dhangar" as "/kaxM+" in Hindi. The petitioner No.1, President of All India Dhanar Samaj Mahasangh, Uttar Pradesh and two others have come up in this writ petition challenging the order dated 17th July, 2009 of the State of U.P. with the case that the scheduled caste as mentioned at Entry 27 of the 1950 Order is "/kuxj" and the respondents should issue caste certificate treating the said caste as "/kuxj". 

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The issue which has been raised by this petition is that the scheduled caste which has been included in the 1950 Order at Entry 27 "Dhangar" is a sub-caste of Garariya which is another backward caste in the State of U.P. The petitioners' case is that the scheduled caste included at Entry 27 of the 1950 Order is a shepherd caste whose members are engaged in tending sheep and goats and make blankets from the wool of sheep. The case set-up in the writ petition is that the State Government by misspelling the caste "Dhangar" is refusing to issue caste certificate to the members of the petitioners' association who belong to shepherd caste.

The State of U.P. as well as the Union of India through Ministry of Home Affairs and through Ministry of Law, Justice & Company Affairs have been impleaded as respondents to the writ petition. A counter affidavit as well as supplementary counter affidavit have been filed on behalf of Principal Secretary, Social and Welfare Department, U.P., Lucknow and Commissioner, Social Welfare, U.P., Lucknow (respondents No.2 and 3). The Union of India through Samajik Nyay Evam Adhikarita Mantralya, Bharat Sarkar, New Delhi has also filed counter affidavit as well as an affidavit as per direction of the Court. The petitioners have filed two supplementary affidavits to which supplementary counter affidavits as well as supplementary rejoinder affidavits have also been filed. The writ petition was heard and judgment was reserved on 18th January, 2012. By order dated 10th February, 2012, we directed for further hearing of the matter. On 10th February, 2012 following order was passed:-

"The writ petition was heard on 18th January, 2012 and judgment was reserved.

While going through the counter affidavit filed on behalf of the State sworn by Mr. N.N. Nath Verma, Research Officer, Scheduled Caste and Scheduled Tribes Research and Training Institute, U.P., Lucknow, it transpired that reference of several materials and books have been made in the counter affidavit regarding the caste "Dhangar, Dhangad". The petitioner also in the supplementary affidavit has referred to Kaka Kalekar's report and some other materials.

For deciding the issues raised in the writ petition, we are of the view that history, characteristics and other relevant details regarding the aforesaid caste is necessary.

List this writ petition for further hearing on 21st February, 2012 to enable the learned counsel for the parties to bring relevant materials pertaining to history, characteristics and other relevant details of the caste in issue.

In pursuance of the order of this Court dated 10th February, 2012, the petitioners filed extract of various books and reports. Learned Additional Advocate General has also placed before the Court two books, namely, Bibliography on Scheduled Castes, Scheduled Tribes and Selected Marginal Communities of India published by Registrar General, India, Ministry of Home Affairs, New Delhi as well as the Work of W. Crooke titled as "Tribes and Castes of the North Western Provinces and Oudh. The parties were further heard on 21st February, 2012.

Facts of the case as emerge from the pleadings of the parties, briefly noted, are; "Dhangar" is a scheduled caste recognised in the State of U.P. In exercise of power conferred by Clause (1) of Article 341 of the Constitution of India, the President after consultation with the Governor issued the Constitution (Scheduled Castes) Order, 1950. The 1950 Order stated following in paragraph 2:-

"2. Subject to the provisions of this Order, the castes, races or tribes, or parts of, or groups within, castes or tribes, specified in Parts I to XVI of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule."

For Uttar Pradesh, following is relevant Entry of the Scheduled Caste:-

"PART-VIII - Uttar Pradesh
27. Dhangar."

The Order 1950 was amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and other Parliamentary Amendments Acts made thereafter, as a consequence thereof, the Entry 27 of the 1950 Order remained as it is.

The official translation of the Amendment Act, 1976 under Section 5 of the Official Languages Act, 1963 was published and gazetted in which Hindi Translation of Entry 27 was as follows:-

"27. ''/kaxM+'"

The petitioners claim to be association of people belonging to scheduled caste "Dhangar" (/kuxj) of Uttar Pradesh affiliated to All India Dhangar Samaj Mahasangh. Petitioners' case in the writ petition is that traditional occupation of the people belonging to scheduled caste "Dhangar" (/kuxj) is to tend sheep and goats and sell the goat milk and make blankets from the wool of the sheep and sometimes breed and sell stock for slaughter. Petitioners' case further is that Backward Classes Commission submitted its report in the year 1955 which did not make any change to the Entry 27 of the 1950 Order. No change was also made to the Entry 27 by Modification Order 1956 and 1976 Amendment Act. A circular is said to be issued by the State of U.P. on 29th August, 1977 in which the list of the scheduled castes in the State of U.P. was communicated in Hindi, Entry 27 of which was mentioned as "/kuxj". The State of U.P. issued a Government order dated 28th February, 1978 after the 1976 Amendment Act directing that the name of scheduled Caste as mentioned in the Government order dated 29th August, 1977 with regard to Entry 27 be read as "/kkaxj" in place of "/kuxj". A writ petition being Writ Petition No.17832 of 1997 (All India Dhangar Samaj Mahasangh U.P. vs. State of U.P. and others) was filed in this Court raising grievance that the State Government in the year 1978 wrongly described the caste as "/kkaxj" whereas it would have retained as Dhangar "/kuxj". This Court disposed of the writ petition by order dated 22nd May, 1997 with the following observations:-

"... The petitioner can always move the Central Government in this regard and if there is any defect in the notification of the State Government concerning description or noting or spelling of the caste it should be corrected voluntarily by the State Government if represented to that effect on following such direction as Central Government may issue in this regard. ..."

A Government order dated 28th January, 2002 was issued by the State Government in which Entry 27 was referred to as "Dhangar" (/kkaxj). Further a Government order dated 3rd January, 2007 was issued by the State of U.P. in which Government order direction was issued that those members who belong to Gaderiya caste which is another backward caste and claim themselves to be "/kuxj" be not issued the certificate since the said caste is different from "/kkaxj" included in the 1950 Order. Again a Government order was issued on 15th April, 2008 repeating the same words "Dhangar" (/kkaxj). Aggrieved by the Government order dated 28th January, 2002, a writ petition being Writ Petition No.16458 of 2002 was filed praying for quashing part of the letter by which "/kuxj" community has been specified as "/kkaxj". This Court disposed of the writ petition by judgment and order dated 20th October, 2008 clarifying that it is the Presidential Order which shall prevail and the Certificate shall be issued to the Members of only such castes as a Schedule Caste who are described in the 1950 Presidential Order. Against the Government order dated 15th April, 2008 wherein the community was referred as "/kkaxj" in Hindi and "Dhangar" in English a writ petition being Writ Petition No.6389 of 2009 was filed which was disposed of observing that the earlier judgment of this Court dated 20th October, 2008 fully protected the interest of the petitioners. Thereafter came Government order dated 17th July, 2009 by which, referring to the judgment of this Court in the aforesaid two writ petitions, earlier Government orders were superseded and it was directed that at Entry 27 of the 1950 Order as amended by the 1976 Amendment Act at Entry 27, the caste is "Dhangar" in English and "/kaxM+" in Hindi. The said Government order dated 17th July, 2009 has been challenged in this writ petition praying for following relief:-

"(i) to issue a writ, order or direction in the nature of certiorari and quashing the part of the Circular/Order dated 17.07.2009 (Annexure No.14) whereby it has been declared that caste notified at serial No.27 in the list of Scheduled Castes in the State of Uttar Pradesh is /kaxM+ and the direction to the authorities to issue Scheduled Caste certificates to the persons belonging to /kaxM caste.

(ii)to issue a writ, order or direction in the nature of mandamus commanding the respondents to issue directions to the authorities concerned for granting Scheduled Caste certificates to persons belonging to /kuxj caste in the State of Uttar Pradesh.

(iii)....."

The petitioners' case in the writ petition, as noted above, is that they belong to "Dhangar" (/kuxj) community which is a scheduled caste with traditional occupation of tending sheep and goats, sale of the goat milk and make blankets from the wool of the sheep and sometimes breed and sell stock for slaughter. Petitioners' case further is that scheduled caste "Dhangar" (/kuxj) as included in the 1950 Order is a shepherd community and sub-caste of Garariya which is recognised in the State of Uttar Pradesh as other backward caste. Petitioners claim that there are several sub-castes of Garariya out of which two are "Nikhar" and "Dhangar" and "Dhangar" being lowest among them, it has been recognised as a scheduled caste. The further case of the petitioners is that several certificates of scheduled caste to its members belonging to "Dhangar" (/kuxj) have been granted right from the year 1950 till 2009 as "Dhangar" (/kuxj) in various districts of the State of U.P. It is stated that in the Government order dated 3rd January, 2007 issued by the State of U.P. it was mentioned that person claiming to be sub-caste of Garariya do not qualify for scheduled caste certificate. Petitioners' case is that mention of "/kaxM+" in Hindi in the official Hindi translation under the Official Languages Act, 1963 of Entry 27 should be "/kuxj" and by misprinting and misspelling the Entry 27 in the official translation, rights of the petitioners are affected since in large part of the State of U.P. the scheduled caste certificates are being denied to the members of the petitioners' association who belong to shepherd caste and are sub-caste of Garariya. It is submitted that in spite of Division Bench judgment of this Court dated 20th October, 2008 and 5th February, 2009 in the writ petitions filed by the petitioners' association the caste certificate is not being issued to the members of the petitioners' association, hence they have come in this writ petition.

A counter affidavit and a supplementary counter affidavit have been filed by the State refuting the claim of the petitioners. It has been pleaded by the State that although the petitioners claim that their main occupation is to tend sheep and goats and sell the goat milk and make blankets from the wool of the sheep but in the ethnographic details of original Dhangar caste under the heading of "Social Customs" their main profession/business has been given as "to work as plough man" in which their original caste has been given as Dhangar scheduled caste. It has been stated that translation in Hindi of Dhangar has rightly been made as "/kaxM+". In the counter affidavit reliance has been placed on the Bibliography and the work of W. Crooke titled as "Tribes and Castes of the North Western India". In the supplementary counter affidavit it has been stated that caste "Dhangar" which is a scheduled caste, is found in Kaimoor Range in district Mirzapur. The caste "/kuxj" is different from "/kaxM+". It is stated that circular dated 17th July, 2009 is correct.

The Union of India has also filed its counter affidavit as well as an affidavit. The gazette notification in which the 1976 Amendment Act has been published as well its official Hindi translation has been brought on the record. The Union of India states that in the official translation of the 1950 Order as amended by the 1976 Amendment Act, the scheduled caste "Dhangar" is "/kaxM+". The Union of India has also placed reliance on Government of India circular dated 22nd March, 1971 which was issued on the subject "Issue of Scheduled Caste and Scheduled Tribe certificates-Clarifications regarding.".

We have heard Sri Bhanu Pratap Singh Dhakare, learned counsel for the petitioners assisted by Sri R.C. Sinha and Sri H.P. Dubey, Sri R.B. Singhal, learned Assistant Solicitor General of India assisted by Sri Praveen Shukla on behalf of respondents No.4 to 6 and Sri Satish Chaturvedi, learned Additional Advocate General assisted by Sri R.B. Pradhan for the State-respondents. We have also perused the relevant materials brought on the record by the parties.

Learned counsel for the petitioners has submitted that official translation of Entry 27 of the 1950 Order as amended by the 1976 Amendment Act has never been published in the gazette nor the Hindi translation is "/kaxM+". It is submitted that it is the State Government which of its own has been referring to the caste as "/kaxM+" to defeat the claim of the members of petitioners' association. It is submitted that the State Government although while issuing the Government order dated 29th August, 1977 has mentioned scheduled caste "/kuxj" at Entry 27 but in subsequent Government orders it has referred the caste "/kuxj" as "/kkaxj" and "/kaxM+" to adversely affect the rights of the members of petitioners' association. It is stated that there is no community in the State of U.P. which is "/kaxM+" and certificates have been issued to members of "/kuxj" community, few certificates have been brought on the record along with the supplementary affidavit. It is submitted that National Commission of Scheduled Castes in its minutes dated 21th October, 2008 has observed that certificate can be given to wards of "Dhangar" (/kuxj) whose father belong to scheduled caste community. It is submitted that National Commission of Scheduled Caste having opined that scheduled caste certificate can be given to "Dhangar" (/kuxj), the State of U.P. ought to have followed the instructions and the Government order dated 17th July, 2009 is not inconformity with the decision of the National Commission of the Schedule Castes. Letter dated 8th June, 2007 of the National Commission of Backward Classes has been referred to where "Dhangar" (/kuxj) is mentioned as shepherd. It is submitted that community as mentioned in the 1950 Order, as amended by 1976 Amendment Act, i.e. Entry 27 "Dhangar" shall prevail over official Hindi translation where translation of Entry 27 is mentioned as "/kaxM+", hence Hindi translation has to be ignored and the caste certificate is to be issued as per Entry 27. It is submitted that "Dhangar" community is a shepherd community which originated from district Mathura and migrated to west. It is further submitted that Maratha Community of shepherd i.e. Dhangar, has been recognised as scheduled caste in the State of U.P. He submits that Government order dated 17th July, 2009 deserves to be set-aside with a mandamus to the respondents to issue caste certificate to the members of petitioners' association.

Learned Assistant Solicitor General of India, appearing for the Union of India, has submitted that there is no dispute that Entry 27 of the 1950 Order, as amended by the 1976 Amendment Act, is "Dhangar". He however, submits that official translation of the 1976 Amendment Act has been gazetted and published by the Government of India where Entry 27 in Hindi has been mentioned as "/kaxM+". Copy of the gazette notification dated 18th September, 1976 where the Scheduled Casts and Scheduled Tribes Orders (Amendment) Act, 1976 has been published, has been filed as Annexure-1 and copy of the gazette notification dated 29th November, 1979 wherein official Hindi translation of the 1976 Amendment Act has been published, has been filed as Annexure-2 to the affidavit of Mr. Kanhaiya Lal, Under Secretary, Ministry of Social Justice and Empowerment, Government of India dated 3rd January, 2012 in which gazette notification the Entry 27 has been mentioned as "/kaxM+". He submits that petitioners' submission that official translation was never gazetted is incorrect. It is further submitted that issuance of certificate is by the State authorities and it is for the State to explain its actions.

Sri Satish Chaturvedi, learned Additional Advocate General, refuting the submissions of the counsel for the petitioners, has submitted that Government order dated 17th July, 2009 is in accordance with the 1950 Order and the 1976 Amendment Act and the official Hindi translation is "/kaxM+". Referring to paragraph 6 of the counter affidavit and paragraphs 3 to 6 of the supplementary counter affidavit, it has been submitted that caste "/kuxj+" is different from "/kaxM+" and caste "/kaxM+" is found in Kaimoor Range of district Mirzapur.

Learned counsel for the parties have placed reliance on various judgments of the Apex Court and this Court, which shall be referred to while considering the submissions in detail. Learned counsel for the parties have also referred to various authoritative work by authors, gazetteers published under the authority of Government of India/Government of the State and reports, which shall be referred to while considering the submissions in detail.

From the submissions made by learned counsel for the parties, following issues arise for determination:-

(1)Whether the Government order dated 17th July, 2009 mentioning the scheduled caste "Dhangar" at Entry 27 as "/kaxM+" in Hindi is in accordance with the 1950 Order and official Hindi translation of the 1950 Order as amended from time to time?

(2)Which caste is included in scheduled caste at Entry 27 of the 1950 Order for the State of Uttar Pradesh?

(3)Whether caste "Dhangar" as notified at Entry 27 of the 1950 Order is the same caste as claimed by the petitioners i.e. sub-caste of Garariya, a shepherd caste?

(4)Whether in State of Uttar Pradesh there are two castes which are referred to as "/kaxM+" and "/kuxj+"? If yes, which of them is entitled for issuance of scheduled caste certificate?

Before we proceed to consider the issues as noted above, it is relevant to refer to history of castes in India, specially in relation to State of Uttar Pradesh. Both the parties have placed reliance on different authoritative books and works on the subject, which shall be hereinafter referred to.

India is a country which is full of diversity not only in relation to castes and tribes but in relation to culture, custom and geography. The country is divided from the rest of Asia by high barrier of the Himalayas and from other parts of the outside world by sea. This isolation has not prevented numbers of races from migrating into India, but it has led to the development of society on peculiar lines of its own. Major parts of the country were referred to as North Western Provinces, Eastern India, Central India, Western India and Southern India. There has been enumerable invasions and migrations from different parts of the world, first of which may be treated to be ''Aryans'. The original castes and tribes which inhabited different parts of the country in spite of invasion and migration of other castes, have maintained their custom, culture and rituals to some extent. To dwell upon different aspects of caste, creed and tribes is not the subject matter of this petition since the issue, which is involved in this writ petition, is with regard to a particular caste "Dhangar" which is included in the 1950 Order at Entry 27 with regard to State of U.P. However to specify and distinguish the scheduled castes included in the State of U.P. and to establish its identity, if any, with other similar castes in different parts of the country, may be relevant so as to come to a definite conclusion as to what were the characteristic and nature of the castes which were included as scheduled caste at Entry 27 in the State of U.P.

Before independence during the British regime there has been census operations, researches and the studies on different castes and tribes of the country. In an arrangement by Central Provinces Administration the study of caste system of different parts of the country was entrusted to various ethnographist and sociologists and following are the works which have been relied and referred to as relevant materials regarding ethnography of the caste as important, they are:-

(i)"Tribes and Castes of Bengal" by Sir Herbert Risley.
(ii)"Castes and Tribes of North Western Provinces and Oudh" by Mr. W. Crooke.
(iii)"Castes and Tribes of Southern India" by Mr. Edgar Thurston.
(iv)Tribes and Castes of Central Provinces of India by Mr. R.V. Russell.

The 1950 Order, as amended by the 1976 Amendment Act, includes the caste "Dhangar"/"Dhangad" as scheduled caste and scheduled tribe in other States apart from State of U.P. It is useful to refer to various castes which may have relevance with regard to "Dhangar" in different States in following manner:-

"Scheduled Caste
(i)Bihar Entry 10 Dom, Dhangad
(ii)Uttar Pradesh Entry 27 Dhangar
(iii)West Bengal Entry 17 Dom, Dhangad

Scheduled Tribe
(i)Bihar Entry 26 Oraon
(ii)Madhya Pradesh Entry 35 Oraon, Dhanka, Dhangad
(iii)Maharashtra Entry 36 Oraon, Dhangad
(iv)West Bengal Entry 33 Oraon"

The official Hindi translation of the 1950 Order as amended by the 1976 Amendment Act, has also been published and it is useful to note the official translation of the castes as spelled in Hindi, which are as under:-

"Scheduled Caste
(i) Bihar Entry 10 Mkse] /kuxn
(ii) Uttar Pradesh Entry 27 /kaxM+
(iii) West Bengal Entry 17 Mkse] /kaxM+

Scheduled Tribe
(i) Bihar Entry 26 mjkao
(ii) Madhya Pradesh Entry 35 mjkao] /kkudk] /kux<+
(iii) Maharashtra Entry 36 vksjkao] /kux<+
(iv) West Bengal Entry 33 vksjkao"

The caste "Dhangar/Dhangad" is thus scheduled caste in Bihar, Uttar Pradesh and West Bengal whereas it is scheduled tribe in Madhya Pradesh and Maharashtra. As noted above, with regard to caste in Central India, North West India and Bengal there has already been study by the renowned ethnographist and sociologists. The caste "Dhangar" is a recognised shepherd caste of Western India. Mr. R.V. Russell in the Tribes and Castes of Central Provinces of India (Vol.I) with regard to traditions and structure of Dhangars stated following at Pages 480 and 481:-
"Dhangar. - The Maratha caste of shepherds and blanket-weavers, numbering 96,000 persons in the Central Provinces and Berar. They reside principally in the Nagpur, Wardha, Chanda and Nimar Districts of the Central Provinces and in all Districts of Berar. The Dhangars are a very numerous caste in Bombay and Hyderabad. The name is derived either from the Sanskrit dhenu, a cow, or more probably from dhan, wealth, a term which is commonly applied to flocks of sheep and goats. It is said that the first sheep and goats came out of an ant-hill and scattering over the fields began to damage the crops of the cultivators. They, being helpless, prayedto Mahadeo to rescue them from this pest and he thereupon created the first Dhangar to tend the flocks. The Dhangars consequently revere an ant-hill, and never remove one from their fields, while they worship if on the Diwali day with offerings of rice, flowers and part of the ear of a goat. When tending and driving sheep and goats they ejaculate ''Har, Har,' which is a name of Mahadeo used by devotees in worshipping him. The Dhangars furnished a valuable contingent to Sivaji's guerilla soldiery, and the ruling family of Indore State belong to this caste. It is divided into the following subcastes: Varadi or Barade, belonging to Berar; Kanore or Kanade, of Kanara; Jhade, or those belonging to the Bhandara, Balaghat and Chhindwara Districts, called the Jhadi or hill country; Ladse, found in Hyderabad; Gadri, from gadar, a sheep, a division probably consisting of northerners, as the name for the cognate caste of shepherds in Hindustan is Gadaria; Telange, belonging to the Telugu country; Marathe, of the Maratha country; Mahurai from Mahur in Hyderabad, and one or two others. Eleven subcastes in all are reported. For the purposes of marriage a number of exogamous groups or septs exist which may be classified according to their monenclature as titular and totemistic, may having having also the names of other castes. ....."

With regard to occupation of the caste "Dhangar" following was stated by Mr. Russell:-

"The traditional occupation of the Dhangars is to tend sheep and goats, and they also sell goats' milk, make blankets from the wool of sheep, and sometimes breed and sell stock for slaughter. They generally live near tracts of waste land where grazing is available. Sheep are kept in open and goats in roofed folds. Like English shepherds they carry sticks or staffs and have dogs to assist in driving the flocks, and they sometimes hunt hares with their dogs. Their dress consists frequently only of a loin-cloth and a blanket, and having to bear exposure to all weathers, they are naturally strong and hardy. In appearance they are dark and of medium size. They eat three times a day and bathe in the evening on returning from work, though their ablutions are sometimes omitted in the cold weather."

Mr. Russell also dealt with Gadaria, Gadri (Vol.III, the Tribes and Castes of the Central Provinces of India) which is occupational shepherd caste of Northern India. While referring to Gadaria, Rusell stated that ''Nikhar' and ''Dhangar" are sub-castes of Gadaria, following has been stated:-

"The Gadarias are a very mixed caste. They themselves say that their first ancestor was crated by Mahadeo to tend his rams, and that he married three women who were fascinated by the sight of him shearing the sheep. These belonged to the Brahman, Dhimar and Barai castes respectively, and became the ancestors of the Nikhar, Dhengar and Barmaiyan subcastes of Gadarias. The Nikhar subcaste are the highest, their name meaning pure. Dhengar is probably, in reality, a corruption of Dhangar, the name of the Maratha shepherd caste. ....."

Mr. W. Crooke in Tribes and Castes of North Western India and Oudh has dealt with the caste "Dhangar". They are said to be a Dravidian tribe. Following was said by Mr. W. Crooke at page 263 and 264:-

"Dhangar. - A Dravidian tribe found in some of the eastern districts of the Province. They are only shown in Gorakhpur, but there are certainly a few in the south of Mirzapur, who are, however, possibly not regular residents. According to Colonel Dalton "the Khurnkh or Oraons of Chutia Nagpur are the people best known in many parts of India as Dhangar, a word that from its apparent derivation (dang or dhang, "a hill") may mean any hillman, but amongst several tribes of the southern tributary Mahals the terms Dhangar and Dhangarin mean the yough of the two sexes both in highland and lowland villages, and it cannot be considered the national designation of any peculiar tribe." According to Mr. Risley, Mr. Oldham says in a note on some historical and ethnical aspects of the Bardwan district that the Male Pahariyas call their men of fighting age Dhangar or Dhangariya. The male are cognates of the Oraons, the dypical Dhangar labourers of Chota Nagpur, so that on this showing the word may well be nothing more than the Oraon for an adult. According to another interpretation the name has reference to the fact that person working as Dhangars receive the bulk of their wages in unhusked rice (dhin). In Bilaspur, in the Central Provinces, they are regarded as a sub-division of the Kanwar, who are the largest sections of the aboriginal population next to the Gonds, and have there taken to wearing the Brahmanical thread. In Sambhalpur they are said to be emigrants from Chota Nagpur, and in Saranggarh they act as weavers and village watchman. M. St. Martin very doubtfully connects them with the Tank Rajputs, the Tangana of the Mahabharata, and the Tanganoi or Ganganoi of Ptolemy. The people known as Dhangar, in the Dakkhin, whose name is derived by Dr. J. Wilson from the Sanskrit Dhenukara, "dealer in cows," are described as a quite and herds. Their Religion, manners, and language are to a great extent like those of the Kunbi, but the temples at which they worship are mere piles of large unhewn stones. The found of the Holkar family of Malwa sprant from this race."

Mr. W. Crooke has further stated that identity of the caste "Dhangar" of district Mirzapur with the Bengal Oraon's is conclusively established and their appearances applies closely. Following is stated in paragraph 3 (Page 265):-

"3. Colonel Dalton's description of the Oraons applies very closely to their cognates the Mirzapur Dhangars. "Although the Oraons when young are pleasant to look upon their good humoured and guileless expression, they are on the whole to be regarded as a dark complexioned and by no means well-favoured race. When we see numbers of them massed together in a market, the features we find to predominate are excess of jaws and mouth, thick lips pushed out by the projection of the jaws, a defect which age increases, the teeth becomining more and more porrect till they appear to radiate outwards from the upper jaw. The forehead is low and narrow, but not as a rule receding; and the eyes have nothing very peculiar about them, often bright and full, with long lashes and straight set, sometimes small and dim, but not oblique. These upper features give characteristic of the lower. There is the indentation usual in the Turanian races between the frontal and nasal bones, but the latter are more pronounced than we find them in the Lohitic tribes. The colour of the majority is darkest brown approaching to black." Mr. Risley adds that no signs of Mongolian affinities can be detected in the relative positions of the nasal and malar bones; the average naso-malar index for a hundred Oraons, measured on the system recommended by Mr. Oldfield Thomas, comes to 113.6."

In the counter affidavit filed by the State much reliance has been placed on the work of Mr. W. Crooke. A gazetteer of Mirzapur (Vol. XXVII of the District Gazetteers of the United Provinces of Agra and Oudh) has been relied by the State in which with regard to caste "Dhangar" following has been mentioned:-

"A Dravidian tribe found in some of the districts in the east of the province, but principally in Mirzapur, is that of Dhangars. At the last census, 1,261 representatives were enumerated in the district. Local tradition has it that the tribe emigrated from a place called Barwai, somewhere in the sought, about 300 years ago. They say that they occupied a narrow valley called Sathorwa, where they used to beset and rob travellers, till an imperial general made terms with their leaders, Jura Mehto and Buddhu Bhagat. By the promise of a rent-free caste he induced them to lay down their arms, and then treacherously ordered a general massacre. The few survivors escaped to Mirzapur. These two leaders, Jura and Buddhu, are the deified heroes of the tribe. The Dhangars are nominally Hindus, but worship none of the regular Hindu dieties. They venerate the deohar, or collection of village gods, through the Baiga; but the special objects of their veneration are Barna Bhawani and Goraiya Deva the letter is the god of cattle. Generally they work as ploughmen; but they are as a rule little better than a miserable, depressed tribe of field serfs very clannish and afraid of strangers."

Mr. W. Crooke has also dealt with Gadaria and also mentioned that one of the sub-castes of the Gadaria is ''Dhingar, Nikhar'. Following has been said with regard to Gadaria at page 361:-

"Gadariya, Garariya, Gaderiya, Ganreriya. - (Hindi gadar, "a sheep:" Sanskrit Gandhara, so called because originally brought from the country of Gandhara or Kandahar).- The caste of shepherds, goat-herds, and blanket-weavers found all over the Province. In many parts they are known as Gual Gadariya, and there seems strong reason to believe that they are in some way connected with the Ahir or Guala race, though their personal appearance indicates a much larger admixture of non-Aryan blood. This is strengthened by the fact noted by Mr. Risley that in Bihar they will take both kachchi and pakki food from Gualas."

In Census of India 1931 the caste "Dhangar" was noticed in United Provinces as one of the castes found present. Petitioners have also referred to Census of India 1961 (Vol.XV) Uttar Pradesh Part VII-A on the subject Woollen Carpet and Blanket Industry in Uttar Pradesh. While referring to workers engaged in the industry "Gadaria" has been mentioned and one of the sub-castes has been mentioned as "Dhingar/Dhangar". Following was mentioned in Chapter-II of the aforesaid Census report:-

"The Gaderiya (from Hindi gadar, "a sheep" or Sanskrit gandhara, so called because originally brought from the country of Gandhara or Kandhar) is a caste of shepherds, goat-herds, and blanket-weavers. At the Census of 1891, the Gaderiyas of U.P. got themselves recorded in 12 sub-castes. viz., Baghel, Bamhaniya, Chandel, Dhingar, Haranwal, Kachhwaha, Nikhar, Phul-singhiya, Rathaur, Rantela, Sagar and Saraswar. Then district Muzaffarnagar had 15,553 Gaderiyas - 1,226 of Haranwal sub-cast, 489 of Dhingar sub-caste, 483 of Chandel sub caste, 455 of Phul-singhiya sub caste, 422 of Nikhar sub-caste, 324 of Saraswar sub-caste, 50 of Bamhaniya sub-caste and 12,104 of other sub-castes. The families covered by the survey belong to Dhingar and Nikhar sub-castes. They trace their origin to the Marhattas who emigrated from Gwalior at the time of the Tomar Raja Budh Sen. They celebrate the birthday of Rani Ahilya Bai and some still visit Gwalior to worship the goddess Kali. Some of them call themselves as Pal Kshtriya."

In the Tribes and Castes of Bombay by Mr. R.E. Enthoven the Dhangars were mentioned to have found all over the Deccan, Konkan and the Southern Maratha country. Mr. R.E. Enthoven while referring to caste "Dhangar" has stated that they have spread over not only to Deccan and Konkan but also over the Central Provinces, Berar, the United Provinces and Central India. It is useful to quote following as mentioned by Mr. R.E. Enthoven for Dhangars:-

"Dhangars seem to be spread not only over the Deccan and Konkan but also over the Central Provinces, Berar, the United Provinces and Central India, where they are called Dhangars. The Dhangars of the Central Provinces and Berar are, like the Dhangars of the Deccan and Konkan, shepherds and wool-weavers, so that their identity is not at all improbable. The same cannot perhaps be said of the Dhangars of Northern India, who are employed in felling the jungle, and work as labourers and scavengers. Wilson thinks these to be different from the shepherds and wool-weavers of this name in Southern India, although they may be the same as the Dhangar cultivators of Telangana. Sherring, however, supposes that the Dhangars of Northern India are not the same, as the Southern Dhangars are much higher in social rank. But diversity of occupation or social rank is not a strong argument against the identify of the Dhangars of Northern India with those of Telangana , or of either with those of Berar and the Deccan and Konkan. Instances are not wanting of tribes being broken up each into a number of sub castes as they spread over a large area, following various professions and occupying different social positions in different districts. Again, the very fact that there is no such Sanskrit word as Dhangar, or other word corresponding to it in sound,seems to show that originally Dhangar was a tribal, and not a functional, name. The Dhangars or Dhangas, whether in Northern or Southern India, may, therefore, reasonably be considered to belong to the same race."

In Census of India, 1891 Berar (Hyderabad Assigned Districts) by Warren Hasting, following was mentioned with regard to Dhangars:-

"The Dhangars, or Shepherds, who are also sometimes blanket-weavers, are one of the largest castes in Berar. The Hatgars are sometimes regarded as a subdivision of Dhangars, and although they have been tabulated as separate castes both on this occasion and in 1881, it appears, from the figures for the Pusad and Darwha taluks at least, that the names have been indiscriminately applied. The Pusad taluk and the north bank of the Painganga river has been the home of the Hatgars since about 1600 A.D., when, according to the Ain-i-Akbari, they were driven westward across the Wardha by the Gonds, and in 1881 the number of this caste enumerated there was 5,013; on the present occasion the returns show only 733. On the other hand, the Dhangars numbered 4,747 in 1881 and as many as 9,713 in 1891. So in Darwha, while the returns show a rise among Hatgars from 69 to 1,155, they exhibit a fall among Dhangars from 4,934, to 4,353. How far the error extends it is impossible to say, and the only comparisons that can be safely made are those of the combined figures for both castes. For the whole province these amount to 87,626 or 3 per cent of the total population; for 1881, they were 83,164, and the increase is 4,462 or 5.4 per cent. Of the total 10,446, or nearly 12 per cent, are found in the Pusad taluk, where they form 7.5 per cent of the population. In Malkapur they number 5,991, in Darwha 5,308 and in Chandur 5,279. In Kelapur there has been a comparatively large increase, they numbers having risen from 1,610 to 2,213, or more than 37 per cent. In Morsi, Wun, Malkapur, Murtazaur and Chikhli, there have also been considerable increments; in Pusad it amounts to 786 or 8 per cent. In Daryapur, Akola, Jalgaon, Khamgaon, Ellichpur, and Akot, there has been some diminution."

The petitioner has also referred to Indore State Gazetteer (1931) where while placing the history it was mentioned that Holkar dynasty was founded by Malhar Rao who was belonging to caste "Dhangar" and they originally resided in the country round about Muttra (now known as Mathura). Following was stated with regard to Dhangar:-

"The Dhangar or shephard caste, to which the ruling family of Indore belong numbered 6457 in 1921 as against 5,615 in 1901. Many of Shivaji's trusted Maoles were Dhangars and even now they are, by preference, generally employed in the State army here. Of late many have entered civil employ and are working in the revenue and judicial departments of the State, some having risen to prominent rank in the State service. Except for the moustache and the top knot, they Dhangars usually shave the head and face. Whiskers are only occasionally worn. In domestic life as also in language, dress and food they closely resemble the Marathas, though in the caste scale their position is lower. Their tutelary deity is Khandoba, and the Yajurvedi Deshastha Brahmans are their priests. Early marriage is prevalent among them, and widow re-marriage is also permissible, the ceremony being known as "pat," Because of their caste-affinity with the ruling house of Indore they are concentrated mostly at Indore and, for the same reason, have also risen here in social status."

It is relevant to note at this juncture, a judgment of the Apex Court in the case of Vimla Bai (dead) by Lrs. vs. Hiralal Gupta and others reported in 1990 SCC(2) 22. On of the questions raised in the aforesaid case was, whether migration of plaintiff who belongs to Dhangar (shepherd caste) from Mathura to Aurangabad and further to Central Province is to be presumed on the basis of official gazette relied. Referring to Thurston on Caste and Tribes of Southern India, the Apex Court held that Marathi caste of shepherd are Dhangar. It is useful to quote paragraph 5 of the judgment, which is to the following effect:-

"5. The Statement of fact contained in the official Gazette made in the course of the discharge of the official duties on private affairs or on historical facts in some cases is best evidence of facts stated therein and is entitled to due consideration but should not be treated as conclusive in respect of matters requiring judicial adjudication. In an appropriate case where there is some evidence on record to prove the fact in issue but it is not sufficient to record a finding thereon, the statement of facts concerning management private temples or historical facts of status of private persons etc. found in the Official Gazette may be relied upon without further proof thereof as corroborative evidence. Therefore, though the statement of facts contained in Indore State Gazette regarding historical facts of Dhangars' social status and habitation of them may be relevant fact and in an appropriate case the Court may presume to be genuine without any further proof of its contents but it is not conclusive. Where there is absolutely no evidence on record in proof of the migration of the family of the plaintiff or their ancestors from Mathura area, the historical factum of some Dhangars having migrated from U.P. and settled down in Aurangabad District or in the Central Province by itself cannot be accepted as sufficient evidence to prove migration of the plaintiff family. Further no evidence was placed on record connecting Holkars of Indore with Dhangars of Bombay Province. Shri Lalit, learned counsel, admits that the statement of facts of Dhangars contained in Indore State Gazette is not conclusive evidence but he says that it may be taken into account as evidence connecting the family of the plaintiff. In the absence of any evidence proving migration of the family of the plaintiff or their ancestors from Mathura to Ahmednagar, the historical factum of the migration of Dhangars from U.P. State mentioned in Indore State Gazette is of little assistance to the respondents so as to hold that they carried with them to Indore the Banaras School of Hindu Law prevailing in Uttar Pradesh. Even as regards the Dhangars as migrants, Thurston on Caste and Tribes of Southern India in Vol. III p. 167 stated that the statement of the census Report of 1901 establishes that Marathi Caste of Shepard are Dhangars and their home speech is Marathi and they are the residents of Bombay Presidency. It would, thus, show that even in 1901, Dhangars were held to be original Marathis of Bombay Presidency. We, therefore, hold that the case before us that Bhikubai, the plaintiff, and her family had migrated from Mathura to Ahmednagar District in Bombay Presidency has not been proved and admittedly, they migrated from Ahmednagar to Indore."

Above are some references of the caste "Dhangar", their occupation and characteristic as have been noted in different gazetteers and authoritative books.

Before we proceed with further discussion on the subject, one of the submissions, which has been raised by learned counsel for the petitioners regarding misprinting or incorrect Hindi translation of Entry 27 is to be dealt with.

As noticed above, in the 1950 Order as amended by 1976 Amendment Act the Schedule Caste Entry 27 is "Dhangar". The Hindi Translation under the Official Languages Act, 1963 was published and gazetted in which translation was mentioned at Entry 27 as "/kaxM+". The orders of the State Government which were issued thereafter mentioning the caste "Dhangar" while referring to Entry 27 were in accordance with the official translation in Hindi under the 1963 Act and it cannot be said that the State Government of its own spelled in Hindi the caste "Dhangar" as "/kaxM+", rather the State Government adopted and followed the Hindi version of the translation. At this juncture, it is relevant to note the judgment of the Apex Court in the case of Nityanand Sharma vs. State of Bihar and others reported in (1996)3 SCC 576. In the said case the caste "Lohara/Lohra" was mentioned as scheduled tribe in the State of Bihar. The Hindi translation of the entry described the said caste as Lohar (yksgkj). The petitioner of that writ petition who belonged to Lohar community (blacksmith) which was treated as other backward caste in the State of Bihar claimed benefit of scheduled tribe on the basis of official translation in Hindi. Referring to Tribes and Caste of Bengal by Mr. H.S. Risley, following were said in paragraphs 10 and 11:-

"10. In `Tribes and Castes of Bengal' written by renowned sociologist, H.S. Hisley in Volume II, is found the description of Lohar as Blacksmith of Bihar, Chota Nagpur and West Bengal. He mentions therein thus:

"Lohar, as sub-castes of Barhi in Bihar, only work in iron. They are, however, distinct from, and do not inter marry with the Lohra caste. The latter are probably Dravidian descent, while former appear to be an occupational group. Lohar, a synonym for Kamar in Behar; a mul or section of the Naomulia or Majraut sub-caste of Goalas in Behar; a section of Kamis in Darjeeling."

So far as "Lohars of Behar" are concerned, the author says:-

"In Behar the caste works as blacksmiths and carpenters while many have taken to cultivation. They buy their material in the form of pigs or bars of iron. Iron smelting is confined to the Lohars of Chota Nagpurs and is supposed to be a much less respectable form of industry than working up iron which other people have smelted. In the smelted. In the Santhal Parganas Lohars often cultivate themselves while the women of the household labour at the....."

The other sub-castes of 'Lohra' and 'Loharas' have been stated by the author as follows:-

"Lohara, a sept of Mundas in Chota Nagpur. Lohar Agaria, a sub-tribe of Agarias in Chota Nagpur. Loharatengi, section of Rajwars in Western, Bengal. Loharbans, iron a totemistic sept of Chicks; a section of Gasis in Chota Nagpur.

Lohra, a synonym for Asura and Lohar.

Lohra, Asur, a sub-tribe of Asuras in Chota Nagpur."

11. `Lohra' or `Loharas' are thus different from `Lohar' in Bihar as 'Lohars', as noticed hereinbefore are ranked with 'Koiris' and 'Kurmis' whereas 'Lohra' or 'Loharas' are merely sub-castes, a sept of Mundas in Chota Nagpur or sub- tribes of Asurs who are Scheduled Tribes."

The Apex Court in the said case held that the caste "Lohar" was not included as scheduled tribe and it is only in translated version that it has been wrongly mentioned as "Lohar". The Apex Court further held that Act and Schedule as enacted by the Parliament in English language is authoritative text. Following was laid down in paragraphs 18 and 19:-

"18. It is seen that in Second Schedule in Part III of the Act, as extracted hereinbefore, Lohar was not included as a Scheduled Tribe. It is only, as evidenced from the translated version, that the community 'Lohar' came to be wrongly translated for the word "Lohra" or "Lohara" and shown to have been included in the Second Schedule, Part III applicable to Bihar State. Mr B.B. Singh, therefore, is right in placing before us the original version in English and the translated version.

19. Article 348(1)(b) of the Constitution provides that notwithstanding anything in Part II (in Chapter II Articles 346 and 347 relate to regional languages) the authoritative text of all bills to be introduced and amendments thereto to be moved in either House of Parliament.....of all ordinances promulgated by the President.......and all orders, rules, regulations and bye laws issued under the Constitution or under any law made by the Parliament, shall be in the English language. By operation of sub-article (3) thereof with a non obstante clause, where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article. Therefore, the Act and the Schedule thereto are part of the Act, as enacted by the Parliament in English language. It is the authoritative test. When the Schedules were translated into Hindi, the translator wrongly translated Lohara as Lohar omitting the word 'a' while Lohra is written as mentioned in English version. It is also clear when we compare Part XYI of Second Schedule relating to the State of West Bengal, the word Lohar both in English as well as in the Hindu version was not mentioned . Court would take judicial notice of Acts of Parliament and would interpret the Schedule in the light of the English version being an authoritative text of the Act and the Second Schedule."

Similar view was reiterated by the Apex Court in the case of Prabhat Kumar Sharma vs. Union Public Service Commission reported in 2006(10) SCC 576.

It is relevant to note the Constitution Bench judgment of the Apex Court in the case of State of Maharashtra vs. Milind and others reported in A.I.R. 2001 SC 393 where the Apex Court held that scheduled tribe or scheduled caste must be read as it is in the 1950 Order and it is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. Following was laid down in paragraph 35 of the said judgment:-

"35. In the light of what is stated above, the following positions emerge:-

1. It is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950.

2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.

3. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament by law and by no other authority.

4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.

5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda vs. Anirudh Patar & others (1971 (1) SCR 804) and Dina vs. Narayan Singh (38 ELR 212), did not lay down law correctly in stating that the enquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no enquiry at all is permissible and no evidence can be let in, in the matter."

From what has been noticed above, it is clear that there is no dispute between the parties that the caste "Dhangar" is included in the 1950 Order as amended by the 1976 Amendment Act in the list of scheduled castes of Uttar Pradesh. Thus the person belonging to caste as mentioned in Entry 27 has to be given the certificate of scheduled caste as has already been held by this Court in two judgements being judgment dated 20th October, 2008 in Writ Petition No.16458 of 2002 and 5th February, 2009 in Writ Petition No.6389 of 2009. The Division Bench in its order dated 20th October, 2008 laid down following:-

"We have perused the records and after hearing the learned counsel for the parties, we are of the opinion that the caste of "Dhangar" is notified at Item no.27 of the Schedule of the Presidential Order (Schedule Caste) Order, 1950. It is that caste alone which is entitled for a certificate of a Schedule Caste. Any erroneous spelling mistake occurring in the order of the State Government cannot confer a benefit on a different caste. We, accordingly clarify that it is the Presidential Order which shall prevail and the Certificate shall be issued to the Members of only such castes as a Schedule Caste who are described in the 1950 Presidential Order.

Accordingly the writ petition is disposed of with the aforesaid observations."

Again the Division Bench by its order dated 5th February, 2009 laid down following:-

"We are of the view that the judgment of this Court dated 20/10/2008 has dealt with the issue raised in the writ petition and has already held that the caste notified under the Presidential Order (Scheduled Caste) Order, 1950 as amended from time to time has to issue certificate. It is open for the petitioners that if in a particular case, caste certificate is not issued to the caste notified under the aforesaid Order, 1950 or issued in breach of the said judgment of this Court dated 20/10/2008, which fully protects the interest of the petitioners and it is not necessary to reconsider the judgment in the present case as issues have already been dealt with and decided as observed above. It is always open for the petitioners to take appropriate action as permissible under law in case, in a particular matter action is taken by any administrative authority contrary to the Presidential Order (Scheduled Caste) Order 1950.
With the aforesaid observations the writ petition stands disposed of."

Thus there cannot be any dispute that the caste "Dhangar" is a scheduled caste in the State of Uttar Pradesh.

The submission of the petitioners is that the Hindi translation of the 1950 Order as amended by the 1976 Amendment Act, has not been gazetted, cannot be accepted. The translation of the caste "Dhangar" in Hindi as exists today is "/kaxM+". The English word "Dhangar" as included at Entry 27 can both the spelled in Hindi as "/kuxj" and "/kaxM+". The translation as exists today under the 1963 Act is "/kaxM+". All the orders of the State Government have been issued accordingly. We thus also cannot say that the State of U.P. while issuing the Government order dated 17th July, 2009 has wrongly mentioned the word "/kaxM+". However, the dispute between the parties does not end here. As noticed above, although Russell in his work on the Tribes and Castes of the Central Provinces of India mentioned the caste "Dhangar" as shepherd community of Western India but other authoritative books and gazetteers of Bombay Presidency refers the "Dhangar" as shepherd Marathi caste and certain other authors also referred the caste "Dhangar" as shepherd caste of Maratha, whereas Mr. W. Crooke in his work on the Tribes and Castes of the North-Western Provinces and Oudh referring to Colonel Dalton said that the Khurnkh or Oraons of Chutia Nagpur are the people best known in many parts of India as Dhangar, a word that from its apparent derivation (dang or dhang, "a hill").

In the Gazette of United Province (Mirzapur) the Dhangars have been referred to as farm worker and ploughmen. The State in its pleadings in the present writ petition has categorically denied the claim of the petitioners that the caste "Dhangar" as mentioned in Entry 27 is sub-caste of Gadariya and is shepherd caste. In this context, it is relevant to notice the pleadings in the writ petition and the reply by the State. Pleadings of the petitioners in paragraphs 5 and 32:-

"5. That the traditional occupation of people belonging to Dhangar ¼/kuxj½ caste is to tend sheep and Goats, they sale the goat milk and make blankets from the wool of the sheep and some times breed and sale stock for slaughter. The people of Dhangar ¼/kuxj½ caste are very poor and socially and educationally very backward and stand at the lowest level in the caste hierarchy.

32. That in the State of Uttar Pradesh there is no castes pronounced as /kaxM+ either in the list of Scheduled Castes or of Backward Classes and the respondents in order to illegally defeat the claim of the persons belonging to /kuxj caste have issued the Circular dated 17.07.2009 on the basis of incorrect pronunciation of the caste in Hindi version of the Amendment Act 1976 (Annexure No.14).

In paragraphs 7 and 9 of the counter affidavit and in paragraph 6 of the supplementary counter affidavit, the State has replied the aforesaid pleadings, which are as under:-

"7. That the Government of India constituted a Backwards Classes Commission and authorized it to make recommendations for revision of Scheduled Castes in all the States of the Country. The backward Classes Commission submitted its report making suggestions for addition and deletion of certain castes in the Schedules in different states including Uttar Pradesh. The report of the Backward Classes Commission for the revision of the Schedule was published in 1955. In this report with regard to Dhangar ¼/kuxj½ caste in the State of Uttar Pradesh listed at serial no.27 no change was recommended by the Commission. Photostat Copy of the relevant extract of the Report of Backward Classes Commission published in 1955 is being filed herewith and marked as Annexure no.1 to this writ petition.

9. That the State Government on 22.05.1957 issued a circular letter to all the District Magistrates in the State informing therein that the Scheduled Castes order of 1950 has been replaced by the Order of 1956 and therefore the Castes, races or Tribes or parts of or groups within castes or Tribes in relation to Uttar Pradesh be deemed to be Scheduled Castes so far as regards members thereof resident in the State. In this list Dhangar ¼/kuxj½ was at serial no.27. Photostat copy of the Circular Letter dated 22.05.1957 is being filed herewith and marked as Annexure no.3 to this writ petition.

6. That the contents of paragraph 32 of the writ petition are not admitted. It is denied that there is no caste pronounced as /kaxM in the State of U.P. in the list of Schedule Caste. It is also denied that the Government order dated 17.7.2009 has been issued to defeat the claim of /kuxj caste on the basis of incorrect pronunciation. It is submitted that /kaxM Caste, a schedule caste, is found in the Kaimoor Range in Mirzapur. The caste /kuxj is different than /kaxM. The Circular dated 17.7.2009 is just and in accordance with law."

A counter affidavit has also been filed by the Union of India but the counter affidavit does not throw any light on the above serious issue. The Union of India in its counter affidavit replying the pleading of the petitioner in paragraph 5 has only stated that it require no comment. Paragraph 32 of the writ petition has been replied in paragraph 22 of the counter affidavit, where following has been stated:-

"22. That in reply to the contents of paragraph No.32 of the writ petition, it is stated that the list of Scheduled Castes is notified in consultation with the concerned State Government as required under Clause (1) of Article 341. Whether members of ''Dhangar' (/kaxM+), community are found or not, in the State of Uttar Pradesh, this fact can only be confirmed by the State Government. So far as issuance of circular dated 17.07.2009 is concerned it is stated it clarifies the correct position of the Dhangar community appearing at Sl.No.27 of Part XVIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950 as amended from time to time."

Thus although there is no dispute that "Dhangar" at Entry 27 in the 1950 Order is scheduled caste community recognised in the State of U.P. but the castes and communities which are entitled to be treated as Dhangar in the context of State of U.P. is the bone of contention between the parties. Whether sub-caste of Gadariya i.e. "Dhangar" belonging to shepherd caste is referred to and contemplated by Entry 27 or the caste Dhangar//kaxM cognate of Oraon as pleaded by the State is included in Entry 27, is a serious issue. Although the petitioners have challenged the orders issued by the State Government in writ petitions in this Court where Dhangar was spelled by the State Government as "/kkaxj"/"/kaxM+" and this Court disposed of the writ petitions with the observation that only that caste is entitled for certificate which is mentioned in the Presidential Order but there has been no adjudication either by the State Government or by this Court earlier about the issues which have been raised and canvassed in this writ petition. The petitioners have also placed reliance on a decision of the National Commission for Scheduled Caste which was communicated to the State Government by letter dated 3rd December, 2008. It is useful to note the minutes of the meeting of National Commission for Scheduled Caste held on 21st October, 2008 at Item No.6, which is to the following effect:-

"Item No.6: Change of Hindi Version of Caste ''Dhangar' listed at Sl.No.27 of the Scheduled Castes list of the State of Uttar Pradesh on their own without amendment by the Parliament.

The Commission was informed that a representation was received from Shri J.P. Singh Dhangar of Agra, U.P. mentioning that Government of Uttar Pradesh is not issuing certificate to the persons belonging to the Caste ''Dhangar' ''/kuxj' which is listed at the serial no.27 of the Scheduled List in which they have mentioned ''/kkaxj' in place of ''/kuxj' through letter no.1432/26-3-86-11 (Vidhan Sabha)-86 dated 10th July, 1986 by the Government of Uttar Pradesh on their own without amendment by the Parliament. The matter was heard by the Hon'ble Member Smt. Satya Bahin who ordered that persons who originally belong to the castes ''Dhangar' (/kuxj) should not be denied SC certificate after proper verification as per rules.

The matter was discussed in detail and it was decided that such policy issues be always placed before the full Commission in advance before any recommendation/advice is given form the Commission's side. It was also decided that SC Certificate can be given to the wards of ''Dhangar' (/kuxj) whose father belonged to SC community, U.P. Government may be addressed accordingly. SC Certificate as per rules/ instructions may be issued to the Members of this community by the prescribed authority of the State Government."

In the counter affidavit filed by the State, it itself has referred to and relied on a case of the petitioners as was raised in detail representation filed by one Sahab Singh Dhangar dated 20th February, 2008 wherein the claim was mentioned in detail including the ethnology and sociology on "Dhangar" but, as observed above, there has been no adjudication. The 1950 Order was issued on the basis of consultation of the Governors of the State and on the basis of reports and details with regard to each caste available with the President at the relevant time. The amendment in the 1950 Order has been made by the Parliament where various reports and materials came into the notice of the Government. In this context, it is useful to refer to the 27th Report of Standing Committee on Labour and Welfare with regard to Scheduled Castes and Scheduled Tribes Order (Second Amendment) Bill, 2002. The issue was regarding Dhangar and Dhangad of Maharashtra. The caste "Dhangad" is included as scheduled caste by Entry 36 in Maharashtra. It was pointed out by the Member of Parliament that there is spelling mistake and correct scheduled tribe is ''Dhangar". The Ministry considered and refused to correct the same. It was also observed by the Ministry that there are two distinct communities having similar nomenclature, one is Dhangad which is a sub-group of Oraon, a Scheduled Tribe appearing at S.No.36, traditional occupation of which is cultivation whereas there is another community ''Dhangar' whose traditional occupation is cattle, rearing and weaving of woollens. It is useful to quote paragraphs 2.17 and 2.18 of the aforesaid report, which are as under:-

"2.17 The ''Dhangad' community has been included in the Constitution (Scheduled Tribes) Orders, 1950 vide entry No.36 in part IX of Maharashtra State. Shri Pradeep Rawat, MP has pointed out that there is spelling mistake in the community. He stated that instead of ''Dhangad' the correct name of this Scheduled Tribe community is ''Dhangar'. He has, therefore, requested that the Committee may take necessary action to correct the printing mistake.

2.18 The Ministry in their reply has stated that in the State of Maharashtra there are two distinct communities having similar nomenclature, one is Dhangad which is a sub-group of Oraon, a Scheduled Tribe appearing at S.No.36 of the List of Scheduled Tribes. The traditional occupation of this community is cultivation. There is another community known as ''Dhangar' whose traditional occupation is cattle rearing and weaving of woolens. The ''Dhangad' and the ''Dhangar' are two distinct communities having no ethnic affinity at all. The Dhangars who are shepherds have been notified as Nomadic tribe in the State of Maharashtra. Therefore, there is no printing mistake in the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976 through which the Constitution (Scheduled Tribes) Order, 1950 was amended."

We have already noticed various entries in the 1950 Order regarding Bihar, Uttar Pradesh, West Bengal, Madhya Pradesh and Maharashtra. There is one relevant fact to be noticed is that although in Uttar Pradesh the scheduled caste mentioned is Dhangar whereas both in Bihar and West Bengal, the caste is Dhangad and the caste "Dhangad" is also mentioned in Madhya Pradesh and Maharashtra as scheduled tribe. The official Hindi translation of Dhangar in the State of U.P. is "/kaxM+" and Hindi translation of ''Dhangad' which is mentioned as scheduled caste in Bihar and West Bengal is also "/kaxM+". When the 1950 Order uses "Dhangar" and "Dhangad" at different entries relating to different States, it is to be presumed that this was purposely and deliberately done and difference in the community was well contemplated.

Under the Constitution of India, the National Commission of Scheduled Caste has been entrusted with the duty to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and in spite of matter being raised before the National Commission for Scheduled Castes, it has neither gone into the issue nor decided the controversy. Article 338 of the Constitution of India contemplates National Commission for Scheduled Castes with the duties as mentioned in sub-clause (5), which is to the following effect:-

"338(5). It shall be the duty of the Commission--
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;

(c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State;

(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and

(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify."

The National Commission for Scheduled Castes is also to submit a report to the President for consideration of the recommendations.

We, by our order, have directed the learned counsel for the parties to produce the relevant materials regarding the caste "Dhangar" and this Court also referred to Kaka Kalekar's report and some other materials in its order dated 10th February, 2012. Although report of the backward Classes Commission has been referred to in Annexure-1 to the writ petition but the report or any other relevant materials to throw any light as to what was the characteristic, occupation or nature of the community which was included at Item No.27 of the 1950 Order, have not been brought on the record. Even in the works of sociologists and ethnographists, as noticed above, there is divergence in the opinions. One's view is that the caste "Dhangar", which is in the State of U.P., is the same community which is shepherd community of Western India whereas another view of the authors is that they are cognate to the Oraon and their occupation is farm labour and ploughmen. The issues have a very serious impact on the rights of scheduled castes protection of which is a constitutional mandate.

The Apex Court in the case of A.S. Nagendra vs. State of Karnatak reported in 2005(10) SCC 301, has held that appropriate authority to decide the issue i.e. interpretation of Presidential Order, 1950, would be the National Commission for Scheduled Castes and Scheduled Tribes established under Article 338 of the Constitution of India. In the aforesaid case under Article 342 of India "Maleru" has been described as a tribe or tribal community. The question arose as to whether the tribes "Maleru" and "Maaleru" are same. According to the petitioners of that writ petition there was no difference whatsoever between the two and that both were merely different spelling describing the same community. The matter was taken to the Apex Court and the Apex Court directed the National Commission to look into the matter and submit report. Following was laid down by the Apex Court in paragraphs 1, 6 and 7:-

"1. The dispute in this writ petition arises from an interpretation of the Constitution (Scheduled Tribes) Order, 1950 issued under Article 342 of the Constitution in which "Maleru" has been described as a tribe or tribal community in para 2 of that Order. The question which has been raised is whether the tribe "Maaleru" and "Maleru" are the same. According to the petitioners there is no difference whatsoever between the two and that both were merely different spellings describing the same community. In support of the petitioners' arguments they have relied upon the 1901 and 1911 census reports as well as authoritative textbooks such as Castes and Tribes of Southern India (Vol. IV) by Edgar Thurston as also the State Government's Report of the Second Backward Classes Commission, 1986, Vol. III in support of this submission.

6. In our opinion the appropriate authority to decide this issue, namely, the interpretation of the Presidential Order of 1950, would be the National Commission for Scheduled Castes and Scheduled Tribes established under Article 338 of the Constitution. We may have considered referring the matter to the State Commission for Scheduled Castes and Scheduled Tribes as constituted by the Karnataka State Commission for Scheduled Castes and Scheduled Tribes Act, 2002, had the State Government shown any predisposition to determine the issue as directed by this Court's order in the earlier writ proceedings.

7. We accordingly direct the National Commission to look into the matter and to submit a report before this Court after hearing all affected parties within a period of six months from the date of service of copy of this order. The parties are at liberty to place such material before the National Commission in addition to and over and above the material already referred to, as they may think fit, in order to enable the National Commission to determine the issue correctly."

It is also to be noted that the 1950 Order when mentions the caste "Dhangar" as scheduled caste for the State of Uttar Pradesh, the community was found to be present in the State and was entitled to the benefit. It has also come on the record that certificate has been issued to various members of the scheduled caste belonging to "Dhangar" from time to time.

The above issue is a serious issue affecting the rights of the members of the scheduled caste and there is no sufficient material on the record to give any authoritative pronouncement by this Court. Ends of justice be served in referring the matter to the National Commission for Scheduled Castes and Scheduled Tribes to consider the issues as noted above and determine the controversy looking into the relevant materials including the materials which were available at the time of issuance of the 1950 Order. The National Commission may also send a copy of its report to the State Government as well as Union of India for taking consequential actions. We direct the respondents No.2 and 5 to submit a reference along with the relevant materials along with this order before the National Commission for Scheduled Castes and Scheduled Tribes to consider the issue. The petitioners may also submit relevant materials in support of their claim before the National Commission for Scheduled Castes and Scheduled Tribes for determination of issues. Looking to the fact that dispute has been continuing for several years, the National Commission for Scheduled Castes and Scheduled Tribes shall endeavour to decide the controversy at an early date preferably within a period of six months from the date of receiving the reference from respondent No.2 or 5 along with a certified copy of this order.

The writ petition is disposed of accordingly.

Parties shall bear their own costs.

Date: March 14, 2012.
Rakesh