Hisham Abdul Khader v. University of Kerala — 1997 DIGILAW 452 (KER)

Judgment :- C.S. Rajan, J. The University of Kerala by Ext. P1 notification invited applications for appointment to the post of Lecturers in Chemistry, a post reserved for Muslim community. The petitioner and the third respondent belong to Muslim community. The third respondent was selected and appointed to the above post. But according to the petitioner, the third respondent is not eligible to be appointed to the post under the Muslim reservation quota because he is a native of Tamil Nadu. The third respondent was born and brought up in the State of Tamil Nadu. Therefore, according to him, the third respondent is not entitled to claim the benefit of reservation in the State of Kerala. That is the short question to be decided in this Original Petition. 2. Sri. Elvin Peter, learned counsel appearing for the petitioner relies on three decisions (of which two are of the Supreme Court and one of this Court) to clinch the above issue. The first decision is that of the Constitution Bench of the Supreme Court reported in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College (1990) 3 SCC 130. In the above decision the facts were as follows: The petitioner therein was a native of Andhra Pradesh and belonged to Gouda Community. The above community was specified as a Scheduled Tribe in the Constitution (Scheduled Tribes) Order 1950. His father migrated to the State of Maharashtra and he was brought up in the above State. He was denied admission in the Scheduled Tribes quota in Maharashtra. The case came up before the Supreme Court and the question examined and decided by the Supreme Court was whether one who is recognized as a Scheduled Tribe in the State of his origin continues to have the benefits or privileges or rights in the State to which he migrates. In answering the above question, the Constitution Bench of the Supreme Court was called upon to interpret Arts.341 and 342 of the Constitution and determine what the expression "in relation to that State" read in conjunction with "for the purpose of this Constitution" seeks to convey. Arts.341 and 342 state that the President may specify the castes or tribes, as the case may be, in relation to each State or Union Territory for the purposes of the Constitution. Arts.341 and 342 state that the President may specify the castes or tribes, as the case may be, in relation to each State or Union Territory for the purposes of the Constitution. Before specifying the castes or tribes under either of the two articles the President is, in the case of a State, obliged to consult Governor of that State. Therefore, according to the Supreme Court, when a class is specified by the President after consulting the Governor of a State, it is difficult to understand how that specification made "in relation to that State" can be treated as specification in relation to any other State whose Governor the President has not consulted. After referring to the debates in the Constituent Assembly relating to these Articles, the Supreme Court summed up as under: "In other words, Scheduled Castes and Scheduled Tribes say of andra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic approach in mind, then the determination of the controversy in the instant case does not become difficult". 3. The above dictum in Marri Chandra Shekhar Rao's case was followed with approval in the decision reported in Action Committee v. Union of India (1994) 5 SCC 244. The following paragraph of the above decision is worthwhile to be noticed: "16. We may add 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 would 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 non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States. But the consideration 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 or tribe bearing the same nomenclature is specified in two States. But the consideration 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 State A 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 this 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 Arts.341 and 342 of the Constitution." The above decisions were followed by Justice Radhakrishnan in the ruling reported in Pushpa Devi v. P.S. C. (1996 KLT 56). The petitioner in the above case belonged 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. The learned judge following the Supreme Court ruling held as follows: 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 even though 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 the SCs in the State of Kerala. 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 the 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 benefits even though 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. The stand taken by the Public Service Commission is not discriminatory and violative of Arts.14 and 16 of the Constitution of India." 4. Therefore, according to the learned counsel, the petitioner is on a good wicket to win his case. 5. Counter affidavits have been filed by the University as well as by the third respondent. According to the University Ext. P1 notification does not state that the Muslims of Kerala alone are entitled to apply for the post. The Constitution does not envisage any discrimination on the ground of place of birth. According to the counter affidavits 8 Muslim candidates were interviewed for the post and the selection committee selected the third respondent. The Syndicate of the University also approved the above selection and appointment of the third respondent. 6. The third respondent in his counter affidavit has stated that S.6 of the Kerala University Act clearly prohibits any discrimination on the ground of place of birth, residence etc., in respect of any employment under the University. The third respondent has also produced Ext. R3(a) certificate issued by the Village Officer in Kollam district, according to which the third respondent belongs to Muslim community. Ext. R3 (b) certificate issued by the Village Officer shows that he is a permanent resident of Mangad village in Kollam district, Ext. R3(c) is a certificate issued by the Tahsildar, Kollam to the effect that the third respondent who is a resident of Mangad Village in Kerala State belongs to Islam, Muslim community which is recognised as a backward class under the Government of India, Ministry of Welfare Resolution dated. 10.9.1993. Ext. R3(c) is a certificate issued by the Tahsildar, Kollam to the effect that the third respondent who is a resident of Mangad Village in Kerala State belongs to Islam, Muslim community which is recognised as a backward class under the Government of India, Ministry of Welfare Resolution dated. 10.9.1993. Ext. R3(d) is the ration card in which the third respondent's name is also included., 7. On the above facts disclosed in the counter affidavit it is argued by the learned counsel appearing for the University Sri. S. Gopakumaran Nair and by the learned counsel for the third respondent Sri. Babu Varghese that the rulings of the Supreme Court are not applicable to the facts of this case. It was further argued mat the rulings of the Supreme Court and of this Court relate only to the Scheduled Castes and Scheduled Tribes and not to a backward community. The decisions of the Supreme Court considered the impact of the words "in relation to that State" and "for the purposes of this Constitution" occurring in Art.341 and 342 of the Constitution. Thus, according to the Supreme Court, a notification by the President after consulting with the Governor of a particular State can only relate to that State and not to any other State. In effect the Supreme Court had no occasion to consider the case of a person belonging to a backward community. Reservation in favour of backward communities and inclusion of the names of the backward communities are not governed by Arts.341 and 342 of the Constitution. 8. But the learned counsel for the petitioner submitted that the pronouncement of the Supreme Court are equally applicable in the cases of backward classes also. But I do not think that the Supreme Court was really considering the case of a member of a backward class for which there might be other considerations. There is no case for the petitioner that the Muslims of Tamil Nadu are not included among the backward communities. It also cannot be disputed that the Muslims of Kerala are one among the backward communities. The notifications issued by the University also do not state that the Muslims from other States are not eligible to be considered from appointment in the Muslim reservation quota. It also cannot be disputed that the Muslims of Kerala are one among the backward communities. The notifications issued by the University also do not state that the Muslims from other States are not eligible to be considered from appointment in the Muslim reservation quota. In the cases before the Supreme Court there was a prohibition in the circulars of the Government that a Scheduled Caste person who had migrated from the State of his origin can get the benefit from the State of his origin and not from the State to which he has migrated. The above circulars were upheld by the Supreme Court. There is no such prohibition in this case. Art.15(1) in unmistakable terms provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Art.16(1) further mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. The only exception is with regard to the special provisions to be made for the advancement of any socially and educationally backward classes or for the Scheduled Castes and Scheduled Tribes. If the argument of the petitioner is accepted, then definitely a discrimination on the ground of place of birth or place of residence will creep in. That will definitely be against Arts.15 and 16 of the Constitution. Therefore, I am of the view that the petitioner can not take shelter under the Supreme Court ruling referred to above and also under the ruling of this Court. Thus, the challenge against the appointment of the third respondent fails and the Original Petition is dismissed.