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1995 DIGILAW 421 (KER)

Pushpa Devi v. Public Service Commission

1995-12-07

K.S.RADHAKRISHNAN

body1995
Judgment :- The question that is posed for consideration in the instant case is as to whether a member of the Scheduled Caste or Scheduled Tribe would lose the benefit of that caste or tribe would lose the benefit of that caste or tribe on migration to another State, even if that State recognises the caste or tribe of that member as the one belonging to Scheduled Caste or Scheduled Tribe. 2. In the instant case, petitioner belonged to Kanyakumari District in the State of Tamil Nadu and was married to one P.O. Darmaraj on 19.1.1989, who is a native of Kerala. She applied for the post of Dairy Extension Officer in pursuance to a notification dated 15.3.1991 issued by the Kerala Public Service Commission. In her application, she claimed her community as Hindu Sambava. As per the information furnished in column 12 of the application, she belongs to the State of Tamil Nadu. As the selection pertained to the Special Recruitment from among SC/ST candidates, a person belonging to any State other than the State of Kerala, is not eligible for the benefit of community of appointment in the State. She was therefore not eligible to apply forthe post in response to the notification dated 15.3.1991. Her application was rejected by the Public Service Commission. The Commission again notified the post on 17.1.1992 which was a selection meant for SC/ST candidates in accordance with Rule 17A of the Kerala State and Subordinate Service Rules. Petitioner 'j-,..Emitted her application dated 21.12.1992. In column 7, she stated that she belongs to Kerala State. Since the details furnished by the petitioner in the applications dated 17.4.1991 and 21.12.1992 were contradictory, the Commission in their letter dated 7.6.1993 directed her to explain the circumstances under which contradictory claims were made in two of her applications. Against the said notice, she filed an appeal and requested that she may be treated as belonging to the State of Kerala since she got married to a person of Kerala State and she is permanently settled down in Kerala. She produced a certificate from the Tahsildar to show that she belonged to Tamil Nadu by birth but is residing in Kerala along with her husband since 19.1.1989. Appeal submitted by the petitioner was, however, rejected by the Commission by order dated 16.8.1993 stating that she is not entitled to get the benefit of the community. 3. She produced a certificate from the Tahsildar to show that she belonged to Tamil Nadu by birth but is residing in Kerala along with her husband since 19.1.1989. Appeal submitted by the petitioner was, however, rejected by the Commission by order dated 16.8.1993 stating that she is not entitled to get the benefit of the community. 3. The main question involved in this case is as to whether the denial of the benefit of community in the State of Kerala on the ground that petitioner belonged originally /oto the State of Tamil Nadu is legally correct or not. In Part XVI of the Constitution special provisions relating to certain classes including Scheduled Castes and Scheduled Tribes have been made. Under Article 341 of the Constitution of India, the President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races ortribes or parts of or groups within castes, races or tribes which shall forthe purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. Article 342 deals with Scheduled Tribes. Clause (2) of Article 341 empowers Parliament to include or exclude by law from the list of Scheduled Castes or Scheduled Tribes specified in the notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power of the President is limited to specifying the castes ortribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or Union Territory, as the case may be. Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include nor exclude from the list of Scheduled Castes or Scheduled Tribes specified in the notification any caste or tribe but save for that limited purpose the notification issued under clause (11. shall not be varied by any subsequent notification. it is therefore evident that the castes or tribes have to be specified in relation to a given State or Union Territory. 4. The guidelines for verification of claim of SC/ST are laid. down in the letter No. 35/i/72/R4/SCT dated 2.5.1975 of the Ministry of Home affairs, Government of India. shall not be varied by any subsequent notification. it is therefore evident that the castes or tribes have to be specified in relation to a given State or Union Territory. 4. The guidelines for verification of claim of SC/ST are laid. down in the letter No. 35/i/72/R4/SCT dated 2.5.1975 of the Ministry of Home affairs, Government of India. One of the guidelines states that where a person migrates from one State to another, he can claim to belong to a Scheduled caste or 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. The State Government also in their letter No. 51181/SD4/66/ PD dated 20.1.1967 had clarified that the Government are not bound to give reservation appointment to SC/ST etc. of other States and therefore there is no need to extend the benefit of community to candidates belonging to other States. The Government of India vide their letter No.16014/1/82/SC & BCD-1 dated 6.8.1984 has clarified to all Chief Secretaries of State and Secretary, UPSC that the SC/ST person on migration from the State of his origin to another State will not lose his status as SC/ ST, bullied will be entitled to concession/ benefits admissible to the SC/ST from the State of Origin and not from the State to which he has migrated. 5. In the instant case, petitioner belongs to Hindu Sambava Community, which is a Scheduled Caste in the State of Tamil Nadu. The said community is also a Scheduled Caste in the State of Kerala also. It was so included in the Constitution (Scheduled Castes) Order, 1950. it is the contention of the petitioner's counsel that the denial of benefits and privileges by the State of Kerala is violative of the fundamental rights conferred on citizens by Articles 14,15(1),16(2) and 19 of the Constitution, besides being contrary to the letter and spirit of Articles 341 and 342 of the Constitution. Counsel contended that a bare perusal of the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 would show the same castes and tribes specified in respect of more than one State. It was stated that those belonging to Scheduled Castes and Scheduled Tribes wherever situate are economically backward. It was stated that those belonging to Scheduled Castes and Scheduled Tribes wherever situate are economically backward. Besides, on account of social and economic backwardness they have io surfer a host of indignities and atrocities and are very often compelled to migrate from one State to another in search of livelihood or to escape the wrath of their oppressors. 6. The question as to whether the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country have to be given protection and to what extent came up for consideration before a Constitution Bench of the Supreme Court in Pradeep Jain (Dr.) v. Union of India (1984) 3 SCC 654 Supreme Court held that the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled to in order to become equals with others but those who go to other areas should ensure that they make way forthe disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. The same question was later considered by the Supreme Court in Action Committee v. Union of India, 1994(5) SCC 244. The Supreme Court took the view that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/ Scheduled Tribes or Backward Classes in a given State should depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally nonest in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste ortribe bearing the same nomenclature is specified in two States, but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Coincidentally it may be that a caste ortribe bearing the same nomenclature is specified in two States, but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in a State as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of the Constitution." This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. 7. In the instant case, petitioner belongs to Hindu Sambava Community in the State of Tamil Nadu, which is a scheduled Caste recognised in that State. The situation that we get in the State of Tamil Nadu with respect of that caste or community is different from that we get in the State of Kerala. There are many communities included in the list of Scheduled Castes/Scheduled Tribes in the State of Tamil Nadu, which do not find a place in the State of Kerala. Those candidates eventhough included as Scheduled Castes/ Scheduled Tribes are not eligible to apply in response to the notification in the State of Kerala, though those candidates have settled down in the State of Kerala on various grounds. The petitioners position would be the same but for the fact that the Sambava community to which she belongs is included in the list of SCs in the State of Kerala. Therefore, to confer the benefit on the petitioner would be a case of treating the two equals as unequal which is discriminatory. As far as one person who originally belongs to SC/ST in one State cannot derive the benefit in another State, petitioner is also not entitled to the benefit eventhough her community is included in the list of Scheduled Castes in the State of Kerala. She is entitled to the benefit of her community only in the State of Tamil Nadu, and not in the State of Kerala. She is entitled to the benefit of her community only in the State of Tamil Nadu, and not in the State of Kerala. The stand taken by the Public Service Commission is not discriminatory and violative of Articles 14 and 16 of the Constitution of India. For- the above mentioned reasons, Original Petition fails and the same is accordingly dismissed.