A. P. RAVANI, J. ( 1 ) SOCIO-ECONOMIC transformation of the society does not take place by mere legislative and/or constitutional enactments. It requires revolutionary zeal and sincerity of purpose on the part of all those who execute implement and interpret the laws. This is the message of the instant case in which the guideline issued by the Central Government in relation to the implementation of policy of reservation has come up for consideration. Can the guideline be understood and implemented so as to whittle down the constitutional provisions relating to Fundamental Rights and Directive Principles? Can such meaning be allowed to operate? These are the questions which are to be examined in the proper perspective and with the awareness of historical and socio-economic background of our society. ( 2 ) THE petitioner is serving as Executive Engineer in the Post and Telegraphs Department of the Union of India. He originally belonged to State of Maharashtra in relation to which his caste/community i. e. Halba has been recognised as Scheduled Tribe (ST ). There is dispute with regard to the fact that Halba caste/community has been recognised as ST in relation to the State of Maharashtra since the year 1956 if not earlier. While the petitioner was serving at Bombay his daughter got admission in medical course on reserved seats for ST candidates. The petitioner was in the course of his service transferred from Bombay to Ahmedabad sometime in the year 1978. His son named Vinaykumar G. Borikar has passed the qualifying examination i. e. XII Std. HSC examination held by the Gujarat Secondary Education Board Gandhinagar. It is also an undisputed fact that the petitioners son has secured 267 marks out of 450 marks. For the purpose of consideration of merits in Medical and Engineering colleges in the State total of 450 marks of Maths (I and II) Physics Biology and Chemistry are being taken into account. The minimum required marks for the students belonging to SC ST and other backward classes are 202 out of 450. ( 3 ) THE petitioners son applied for being admitted to 1st year B. E. course within the prescribed time-limit. His application was also supported by a certificate issued by the appropriate officer i. e. District Backward Class Welfare Officer Ahmedabad-Gandhinagar who certified that Vinay Borikar (the student) of Nagpur (Maharashtra) belongs to Halba tribe which is recognised as ST. ( 3 ) THE petitioners son applied for being admitted to 1st year B. E. course within the prescribed time-limit. His application was also supported by a certificate issued by the appropriate officer i. e. District Backward Class Welfare Officer Ahmedabad-Gandhinagar who certified that Vinay Borikar (the student) of Nagpur (Maharashtra) belongs to Halba tribe which is recognised as ST. The authorities processing the application forms for admission to the B. E. course felt that Halba tribe to which the student belongs was not recognised as ST in relation to the State of Gujarat and therefore he was not entitled to claim the seat as ST candidate. The petitioners son being minor the petitioner as father and guardian of the student has challenged the legality and validity of this decision of the respondent-authorities and has invoked the jurisdiction of this High Court under Article 226 of the Constitution of India. ( 4 ) THE respondents-authorities have not disputed the fact that the student belongs to Halba community which is recognised as ST in relation to the State of Maharashtra. The respondent 804 authorities have also not disputed the eligibility of the student concerned. The only ground on which the claim of the student to secure the benefit of reserved seat for ST is denied is that he originally belonged to Maharashtra State and the community to which he belongs i. e. Halba is recognised as ST in relation to the State of Maharashta and not in relation to the State of Gujarat. ( 5 ) IN support of the aforesaid stand the respondent-authorities have relied upon the guideline issued by the Central Government in it letter dared April 2 1975 The relevant part of the guideline which has been relied upon reads as follows:2 Cases of Migration (i) xxx xxx xxx (i) Where a person migrates from one State to another he can claim to belong to a Scheduled caste or a Scheduled Tribe only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated. ( 6 ) THE aforesaid guideline is interpreted so as to mean that a person belonging to a particular State say Maharashtra in relation to which his caste/tribe is recognised as SC/st can claim the benefit of constitutional protetion extended to SC/st only if he claims such benefit within the State of Maharashtra. ( 6 ) THE aforesaid guideline is interpreted so as to mean that a person belonging to a particular State say Maharashtra in relation to which his caste/tribe is recognised as SC/st can claim the benefit of constitutional protetion extended to SC/st only if he claims such benefit within the State of Maharashtra. If such a person migrates to another State he cannot claim such benefit in my other State. The guideline is not happily worded and is the guideline is understood in the aforesaid manner as is sought to be understood by the respondentauthorities the guideline would be violative of the provisions of the Constitution and will be ineffective. ( 7 ) THE aforesaid guideline came up for consideration before me in Special Civil Application No. 6887 of 1985* decided on January 6 1986 In that case a student belonging to Chamar caste/community was alleged to have migrated from Rajasthan to Gujarat and only on the ground that he originally belonged to Rajasthan he was denied the benefit of reservation. There was no dispute with regard to the fact that Chamar cast was recognised as Scheduled Caste in relation to the State of Gujarat as well as in relation to the State of Rajasthan. Therein after referring to the constitutional provisions occurring in Chapter III relating to Fundamental Rights which enable the State to make special provision for the advancement of socially and educationally backward class of citizens and for Scheduled Castes and Scheduled Tribes (Article 15 (4)) and after referring to the provisions of Article 46 occurring in the Chapter relating to Directive Principles of State Policy which directs the State to promote with special care the educational and economic interests of the weaker sections of the people and particularly that of Scheduled Castes and Scheduled Tribes the provisions contained in Article 341 of the Constitution were examined. It was pointed out that the words for the purposes of this Constitution occurring in Articles 341 and 342 of the Constitution were very much important and cannot be made subservient to the words in relation to that State or Union Territory. In the aforesaid constitutional background the guideline has been examined and it is held as follows:" If the guideline is properly understood it attempts to take care of the reverse situation. This may he illustrated by an example. In the aforesaid constitutional background the guideline has been examined and it is held as follows:" If the guideline is properly understood it attempts to take care of the reverse situation. This may he illustrated by an example. (1) One A belongs to State M He belongs to caste H. This caste is 805 not recognised as Scheduled Caste in the State M. (2) This A migrates to State G. In State G the caste H to which he belongs is recognised as Scheduled Caste. (3) A who belongs to State M and also belongs to caste H on his migration from State M to State G cannot say that he belongs to caste H which is recognised as Scheduled Caste in State G and therefore he be given benefit of reserved seats in State G where he has migrated. This is the correct meaning of the guideline. It cannot be applied inversely. To put it differently to be eligible to get the benefit of reserved seat the following things are necessary:1 That a person should be belonging to a State or a part of the State in the country; and2 That in relation to that State or part of the State his caste or community should have been recognised as SC or ST. Once the aforesaid eligibility criteria are fulfilled the resultant benefit and protection are not confined to the area to which the person belongs. This resultant benefit and the constitutional protection will be available to such person throughout the country. . . . . . . . Once the eligibility criteria as stated above are fulfilled the same would be available and applicable in the entire country and it would not be restricted to an area of the State or part of the area of the State. Once a person fulfils the eligibility criteria as stated hereinabove his migration from one State to another or from one part of the State to another part of the State or outside the State cannot deprive him of the benefit guaranteed to him under the constitutional provisions relating to fundamental rights and other provisions of the Constitution. ( 8 ) THUS the question is concluded. However on account of slight difference in the factual background of the aforesaid case and the instant case the counsel for the respondent-authorities has attempted to raise further points. ( 8 ) THUS the question is concluded. However on account of slight difference in the factual background of the aforesaid case and the instant case the counsel for the respondent-authorities has attempted to raise further points. The learned counsel for the respondentauthorities relied upon a decision of the Orissa High Court in the case of K. Appa Rao v. Director P and T reported in AIR 1969 Orissa 220. Reliance is placed on the observations made in para 5 and 6 of the judgment. After referring to the provisions of Article 341 and 342 in para 5 of the judgment it is observed as follows:"the phrase in relation to that State occuring after the words Scheduled Castes in Article 341 (1) and the phrase in relation to that State occuring after the words Scheduled Tribes in Article 342 are not without significance. This shows that in order to get the benefit of being a member of a Scheduled Caste or Scheduled Tribe in the matter of public employment the person claiming it should be a member of such caste or tribe in relation to the particular area or State where he is residing and where he seeks employment. Section 2 of the Public Employment (Requirement as to Residence) Act 1957 cannot override the provisions of the Constitution". Later on after referring to the Constitution (Scheduled Tribes) Order 1950 in paragraph 6 of the judgment it is further observed as follows:"it is therefore clear that the particular Scheduled Tribes specified in the various Parts of the Schedule to that order are recognised as Scheduled Tribes only for the particular area included in those Parts of the Schedule and not anywhere else. So any reference to 806 Scheduled Tribes or Scheduled Caste must be intended to be relatable to the Scheduled Tribes or Scheduled Castes in relation to the particular area or State as appearing in the Schedule to that Order". Relying on the aforesaid observations made by the Division Bench of the Orissa High Court it is submitted that words in relation to that State occuring in Article 341 and 342 should be construed to mean that a member of such caste or tribe can claim benefit of reservation only in relation to the particular area or State where he is residing and where he seeks employment. The aforesaid observations made by the Orissa High Court should be understood in the factual background in which the question arose before the Orissa High Court. In that case the petitioner was a permanent resident of Orissa and he belonged to a community called Konda Kapu. This community was not recognised as Scheduled Tribe in relation to the State of Orissa but it was recognised as Scheduled Tribe in relation to the State of Andhra Pradesh. The petitioner had sought promotion on the basis that he belonged to a tribe which is a Scheduled Tribe. However later on when it was found that the tribe to which he belonged i. e. Konda Kapu was not recognised as ST in relation to the State of Orissa of which he was a permanent resident he was reverted. The petitioner challenged this reversion order and contended that the tribe to which he belonged i. e. Konda Kapu was recognised as ST in the State of Andhra Pradesh and therefore in view of the provisions of Public Employment (Requirement as to Residence) Act 1957 (Central Act No. 44 of 1957 he was entitled to the benefit of constitutional protection of reservation extended to his tribe. Section 2 of the Act provided that upon the commencement of Public Employment (Requirement as to Residence) Act 1957 any requirement as to residence in a State or Union Territory shall cease to have any effect. Therefore it was submitted that his residence in the State of Orissa will not be a bar to public employment under the Central Government and that Statewise classification for the purpose of employment under the Central Services was not recognised. In other words it was contended that for the purpose of claiming the privileges admissible to a member of SC or ST it was enough to show that he belonged to any recognised SC or ST and not that he belonged to such a trible or caste in a particular area or State. This contention was negatived by the Orissa High Court. Thus it should be clear that the question before the Orissa High Court was not like the one which has arisen in this petition. This contention was negatived by the Orissa High Court. Thus it should be clear that the question before the Orissa High Court was not like the one which has arisen in this petition. As stated hereinabove for becoming eligible to get the benefit of reservation two conditions are necessary to be fulfilled: (1) That a person should be belonging to a State or part of the State in the country; and (2) that in relation to that State or part of the State his caste or community should have been recognised as SC or ST. In the case before the Orissa High Court only one of the conditions was fulfilled i. e. the petitioner therein belonged to Konda Kapu tribe; but he belonged to the State of Orissa. His tribe Konda Kapu was recognised as ST in relation to the State of Andhra Pradesh and not in relation to the State of Orissa. Had the petitioner been belonging to the State of Andhra Pradesh in relation to which his tribe Konda Kapu was recognised as ST and from State of Andhra Pradesh had he migrated to State of Orissa or to any other part of the country he would have surely 807 been entitled to claim the constitutional protection extended to the members of his tribe. Thus as both the conditions were not fulfilled the petitioner was denied the benefit of constitutional protection afforded to SC/st. Therefore this decision cannot be pressed into service to support the interpretation of the guideline as suggested. Since the question appears to be arising frequently and has created confusion the same is required to be discussed and examined rather elaborately. The question cannot and should not be resolved by merely referring to the words of guideline. Such a question has got to be examined in the context of history and socio-economic and political background. ( 9 ) WHILE adopting the Constitution We the people of Indian proclaimed that the nation has committed itself to constitute the country into a Sovereign Socialist Secular Democratic Republic and to secure social economic and political justice to all its citizens. Such a question has got to be examined in the context of history and socio-economic and political background. ( 9 ) WHILE adopting the Constitution We the people of Indian proclaimed that the nation has committed itself to constitute the country into a Sovereign Socialist Secular Democratic Republic and to secure social economic and political justice to all its citizens. Part IVA of the Constitution which contains Article 51-A relating to Fundamental Duties of the citizens enjoin a duty upon every citizen to abide by the Constitution and respect its ideals and institutions and it also provides that every citizen shall cherish and follow the noble ideals which inspired our national struggle for freedom. ( 10 ) ALONG with the aforesaid provisions of the Constitution provisions made in Article 15 (4) of the Constitution are required to be read and understood this Article enjoins duty upon the State to make special provision for the advancement of socially and educationally backward classes of citizens or in the Scheduled Casts and the Scheduled Tribes. One is required to remind himself of the duty cast upon the State by Article 46 Article 46 casts a duty upon the state to promote with special care the educational and economic interest of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes. ( 11 ) BE it noted that Article 15 (4) of the Constitution occurs in the Chapter relating to Fundamental Rights. Therefore protection and/or benefits extended to the members of the Scheduled Castes and Scheduled Tribes in accordance with the provisions contained in Article 15 (4) of the Constitution read with other provisions of the Constitutions cannot and should not be lightly interfered with unless some provision of the Constitution itself restricts the scope of such protection given or benefit extended. ( 12 ) THE words occuring in Article 341 (and in Article 342 also) for the purposes of this Constitution should govern the subsequent phrase in relation to that State or Union Territory is not vice versa. ( 12 ) THE words occuring in Article 341 (and in Article 342 also) for the purposes of this Constitution should govern the subsequent phrase in relation to that State or Union Territory is not vice versa. Having regard to the wide disparity regional as well as in socio-economic background of different castes and communities in the country it ma be that a particular cask residing in a specified State may not be socially and economically backward in that particular part of the State while that wry caste residing in mother part may be socially and educationally backward and may be suffering from various type of socio-economic injuries and be also suffering from various forms of exploitation. Therefore in relation to such State or part of the territory of the State the cast/tribe is required to be specified as SC/st and that in the reason why Article 341 (and also Article 342) proides that SC/st may be specified in relation to that State or Union Territory. But it is again in this why Article provided that such specification shall be for the purposes of this Constitution There is no reason why one should forget the phrase for the purposes of this Constitution occuring in Article 341 808 (and in Article 342 ). At any rate this phrase for the purposes of this Constitution cannot be made subservient to the phrase in relation to that State or Union Territory. ( 13 ) AS held by the Supreme Court in Bhaiya Lala v. Harikishan Singh AIR 1965 SC 1557 the State can specify caste/tribe as SC/st in relation to a part of the State i. e. district or sub-area of the State. If the guideline is given the interpretation as is sought to be contended by the respondent-authorities the logical result would be that such persons can be recognised as persons belonging to SC/st only in relation to that district or sub-area of the State. Such result is not conceivable at all. In respect of the cases of migration from one part of the State to another part of the same State clause 2 (i) of the letter provides some guideline. Such result is not conceivable at all. In respect of the cases of migration from one part of the State to another part of the same State clause 2 (i) of the letter provides some guideline. It reads as followvs:"2 Where a person migrates from one part of the State in respect of which his community is Scheduled to another part of the same State in respect of which his community is not Scheduled he will continue to be deemed to be a member of the Scheduled Caste or the Scheduled Tribe as doe case may be in relation to that State". This guideline is also required to be interpreted in the same manner as the guideline contained in 2 (ii) that is to say once a person becomes eligible to claim benefits of the constitutional protection the same will be available to him thoughout the country and his migration from the place of his origin would not disentitle him to claim such benefits even outside the place of his origin. ( 14 ) IF the guidelines are understood and interpreted as is sought to be contended on behalf of the respondents the following results would follow :" 1 On the one hand it would be said that members belonging to SC/st and other weaker sections of the society are given protection under the provisions of Article 15 (4) of the Constitution. But without their being anything in the Constitution a restriction will be placed upon them which would take away their right of free movement and right to reside and settle anywhere in the territory of the country. This would directly impinge upon their fundamental right guaranted under Article 19 (1) (d) and (e) of the Constitution. Thus it would amount to saying that you shall get the costitutional protection under Art. 15 (4) provided you surrender your fundamental right to reside settle and move anywhere throughout the territory of India [article 19 and (e)] (2) This would frustrate the very object of doing social justice. The object of the various provisions of the Constitution referred to hereinabove is to see that the members of SC ST and other Backward Class people belonging to weaker sections of the society be protected from social injustice and from all forms of exploitation and the State is enjoined with a duty to promote their educational and economic interet. The object of the various provisions of the Constitution referred to hereinabove is to see that the members of SC ST and other Backward Class people belonging to weaker sections of the society be protected from social injustice and from all forms of exploitation and the State is enjoined with a duty to promote their educational and economic interet. By restricting the movement of SC or ST in part of the area of the State or to one particular State only such object can never be achieved. (3) The specification or recognition of a caste or tribe as SC or ST as envisaged in the Constitution has nexus to the socio-economic and educational backwardness of the caste/tribe. It has only incidental connection with the geographical area He. the State or part of the State. The caste/tribe is recognised as SC/st in relation to a particular State or part thereof because the members of the caste/tribe residing in that area need constitutional protection on account of their socio-economic condition and 809 status in the society. It is not that particular geographical unit is backward from socio-economic point of view and that particular geographical unit needs constitutional protection and benefits. If the interpretation suggested by the respondent-authorities is accepted indirectly it would amount to affording protection and giving extra benefits to an area of State or part thereof. (4) A member of SC/st will breath different constitutional and legal air in different parts of the country. In the territory of his origin where he belonged he would be entitled to claim benefits of reserved seat and other privileges but in other parts of the country he would breath the air devoid of such constitutional protection and benefits. The same citizen will be differently treated in different parts of the country. (5) There is nothing in Article 341 (or in Article 342) and for that matter in other relevant constitutional provisions such as Article 15 (4) and Article 46 to indicate that a member belonging to a SC/st would be entitled to claim the benefit available to such SC/st only if he or she restricts his or her movement in that particular geographical unit of the country in relation to which his or her caste/tribe is recognised as SC/st. Therefore if the argument is accepted the phrase for the purposes of this Constitution occuring in Article 342 and 342 will become redundant and another phrase for the purposes of that State or territory will have to be impliedly read after the words Union Territory and before the words as the case may be. This would be against the well-recognised canons of interpretation of constitutional provisions. Even courts have no such power to add words by implication in constitutional provisions. Such reading of the guideline would amount to amending the Constitution by an officer issuing guide lines sitting in the State or Central Government Secretariat. It would be travesty of rule of law. On no groundlegal or moral-such course be permitted to be adopted. (6) In practice; the guideline would become unworkable and would lead to frustrating the constitutional provisions. To illustrate the point take into consideration the case of a candidate belonging to Rathva community a tribe recognised as ST specified in relation to the State of Gujarat. If this candidate seeks admission at the All India Institute of Medical Science New Delhi he would be denied the constitutional protection because very probably there will be no such Rathva community in relation to the Union Territory of Delhi. Similarly a student or a candidate belonging to Assam whose cast/tribe is recognised as SC/st in relation to the State of Assam would not be in a position to claim employment or admission on reserved seat say in Gujarat or Maharashtra. The students belonging to SC/st in Assam Kerala or Tamil Nadu will not be in a position to seek admission on reserved seat at the Indian Institute of Management Ahmedabad on the ground that they do not belong to the State of Gujarat and that they have migrated to the State of Gujarat from other parts of the country. ( 15 ) THE aforesaid results could never have been envisaged by the framers of the Constitution. ( 15 ) THE aforesaid results could never have been envisaged by the framers of the Constitution. It could never have been the idea of the framers of the Constitution that weaker sections of the people and the members belonging to SC and ST should stick to their place of birth and surrender their fundamental right to reside and settle anywhere in the country and also to surrender the fundamental right of free movement throughout the territory of India if they wish to get the benefit of constitutional protection emanating from Article 15 (4) 810 and Article 46 of the Constitution. In above view of the matter by no stretch of reasoning H can be said that simply because a person moves out of his State or sub-division of State to which he belongs and in relation to which hi caste/community is recognised as SC/st he would lose the benefit conferred upon him under the orders issued by the President in exercise of his power under Article 341 (or 342) of the Constitution. ( 16 ) IN above view of the matter it is clear that the guideline cannot be read so as to deny the benefit of reserved seat to a student or candidate whenever such a student or candidate claims the benefit of reservation in the State where he has migrated and in relation to which his caste/tribe is not recognised as SC/ ST but the same is recognised in relation to the State of his origin. he guideline only states that a person who migrates from one State to another State can only claim to belong to SC/st in relation to the State of his origin and nothing further can be read in this guideline. My attempt to read something more as suggested by the respondents would lead to absurd disastrous and inconceivable consequences narrated hereinabove. ( 17 ) I am told that the guideline is understood and implemented as canvassed by the respondents since the year 1975. It is also submitted that in other States the students belonging to the State of Gujarat and belonging to SC/st in relation to the State of Gujarat are being denied the benefits of SC/st only on the 6 that they have migrated from the State of Gujarat and that they do not belong to that particular State. It is also submitted that in other States the students belonging to the State of Gujarat and belonging to SC/st in relation to the State of Gujarat are being denied the benefits of SC/st only on the 6 that they have migrated from the State of Gujarat and that they do not belong to that particular State. If this is so it is really a sorry state of affairs Instead of following the wrong course adopted by other State authorities the State of Gujarat should have taken up the issue with the Central Government and mt the point clarified. Now it is hoped that the Central Government would immediately take appropriate steps and shall clarify the position in the light of the discussion and observations made hereinabove. ( 18 ) THE question may be examined yet from another angle. Take the case of a student or a candidate belonging to unreserved category. A student or candidate belong to unreserved category hailing from Gujarat if otherwise eligible to seek admission in medical technical or professional institution either at graduation level or at the post-graduation level anywhere in the country would be in a position to claim such admission on the basis of his merit. Such a student or candidate cannot be denied admission and/or employment in any other part of the country on the ground that he belongs to the State of Gujarat and he does not belong to the State wherein he is seeking admission and/or employment Such a student cannot be told that he shall have to surrender his fundamental right to reside and settle anywhere in the country and also his fundamental right of freedom of movement throughout the territory of India. The same logic and the same criteria should apply to the students and/or candidates belonging to SC and ST. They are also the citizens of the country. They are also governed by the same law prevailing in the country. The only difference is that for the injustice from which they are suffering for the last thousands of years the framers of the Constitution and we the people of India have decided rather pledged ourselves to uplift and ameliorate their lot. That is the reason why provision is made in Article 15 (4) which occurs in the Chapter relating to Fundamental Rights. That is the reason why provision is made in Article 15 (4) which occurs in the Chapter relating to Fundamental Rights. This path is adopted by the nation with a dew to avoid violent upheavals and see that the socio-economic structure of the society is transformed smoothly. 811 Viewed in this context it is the right of SC/st candidates to claim preferred treatment. As stated by Justice O. Chinnappa Reddy of the Supreme Court in the case of S. C. Vasanth Kumar v. State of Karnataka reported in AIR 1985 SC 1495 at page 1508:"they need aid; they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of right and not of philanthropy. They ask for parity and not charity. The days of Dronacharya and Ekalavya are over. They claim their constitutional right to equality of status and of opportunity and economic and social justice. Several bridges have to be erected so that they may cross the Rubicon". "simply because constitutional protection is extended to them they cannot be treated differently than the other citizens of the country. They cannot be asked to surrender their fundamental rights if they wish to avail of the benefits of the constitutional protection extended to them. There is no reason to adopt one standard in respect of the members belonging to SC/st and other weaker sections of the society on the one hand and another standard in ( 19 ) IN the result the petition is allowed. The respondent-authorities are directed to consider petitioners son Shri Vinaykumar G. Borikar as a student belonging to Halba community which is specified as Scheduled Tribe (ST) and decide his application accordingly. Rule made absolute accordingly with no order as to costs. Rule made absolute. .