JUDGEMENT
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(1.)Heard learned counsel for the petitioner and the learned counsel for the respondents.
(2.)Instant writ petition under Article 226 of the Constitution of India, has been preferred against the impugned order dated 26.5.2011, passed by the U.P. Public Service Commission, Allahabad, rejecting petitioner's claim for benefit of reservation under the caste Bhotia, belonging to the category of scheduled tribe. The reason assigned therein is that in accordance with the Government order dated 9.5.2007, the caste Bhotia, does not fall within the category of scheduled tribe in the State of U.P. By assailing the impugned order, petitioner's counsel invited attention to the notification issued under Article 342 of the Constitution of India, in the year 1967 according to which, Bhotia caste, has been included under scheduled tribe. The notification as filed with the writ petition, is reproduced as under:-
"The Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967
(C.O.78)
In exercise of the powers conferred by clause (1) of article 342 of the Constitution of India, the President, after consultation with the Governor of the State of Uttar Pradesh, is pleased to make the following Order, namely:-
1.The order may be called the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967
2.The tribes or tribal communities, or parts of, or groups within tribes or tribal communities specified in the Schedule to this Order, shall for the purposes of the Constitution of India, be deemed to be Scheduled Tribes in relation to the State of Uttar Pradesh so far as regard members resident in that State.
THE SCHEDULE
1.Bhotia
2.Buksa
3. Jannsari
4. Raji
5. Tharu
Published with the Ministry of Law Notice No.G.S.R. 960, dated the 24th June, 1967, Gazette of India, Extraordinary, 1967, Part II, Section (1), Page 311."
(3.)Aforesaid notification has got constitutional mandate and accordingly, Bhotia caste comes within scheduled tribe. Article 342 provides that the President with respect to any State, after consultation with the Governor, shall issue notification specifying the tribes or tribal communities or part of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State. Accordingly, the aforesaid proposition creates constitutional rights in favour of the petitioner to claim the benefit of Bhotia caste under the category of scheduled tribe.
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