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Madhya Pradesh High Court · body

1998 DIGILAW 737 (MP)

Ramkhilawan S/O Ramniwaz Baiswar v. Northern Coal Field Ltd.

1998-09-28

R.S.GARG

body1998
ORDER R.S. Garg, J. 1. This order shall dispose of Writ Petition No. 5014/93 (Ramkhilawan Baiswar v. Northern Coal Field Ltd. and Anr.) and Writ Petition No. 5015/93 (Jagdhari Baiswar v. Northern Coal Field Ltd. and Anr.). 2. Each of the petitioner has filed the petition seeking relief that the respondents be directed to consider the case of each of the petitioner and to provide them the employment to Class-IV posts as per the eligibility and suitability in the light of command of the Hon'ble Supreme Court. 3. Placing absolute reliance on the judgment of the Supreme Court in the matter of Banwasi Seva Ashram v. State of U.P., AIR 1992 SC 920 , learned counsel for the petitioner submits that as the petitioners lands have been acquired for the respondents and as each of the petitioner is a land oustee, he is entitled to employment under the respondents. The facts in nut- shell are that each of the petitioner belongs to Baiswar caste which is a declared and notified Scheduled Caste in State of U.P.; land of each of the petitioner has been acquired for the respondent No. 1. Each of the petitioner moved application to the respondent-establishment that as they belonged to Baiswar caste, they belonged to Scheduled Caste and as they are land oustees they are entitled to an order of appointment in their favour. Certain enquiries were made by the respondents regarding the fact whether the petitioner do belong to Scheduled Caste or not. Each of the petitioner moved application to the respondent-establishment that as they belonged to Baiswar caste, they belonged to Scheduled Caste and as they are land oustees they are entitled to an order of appointment in their favour. Certain enquiries were made by the respondents regarding the fact whether the petitioner do belong to Scheduled Caste or not. The petitioner in support of his contention placed his reliance on Annexure-P/2, a certificate issued by the Tahsildar Sonebhadra U.P. which reads that 'Baiswar is recognised Scheduled Caste in U.P.' Annexure P/2 was further supported by Annexure P/3, which reads that the petitioner of each of the petition was a resident of Sonebhadra District of U.P. In reply to the queries made by the establishment, the petitioner submitted a certificate issued by Naib Tahsildar, Singroli, District Sidhi dated 30-9-1992 showing that the petitioner originally belonged to U.P. He is Baiswar by caste and Baiswar caste is a declared and notified scheduled caste in U.P. The certificate further reads that in some circular of the Government of India dated 18-11-1992 it has been clarified that if a person belonging to scheduled caste or scheduled tribe migrates from his home State to another State his caste would not be changed and he would be entitled to rely upon the certificate issued in his favour. Certain applications were again made by the petitioner to the establishment. The establishment did not accept the submissions and did not issue appointment orders in favour of each of the petitioner. 4. Submission of the learned counsel for the petitioner is that as each of the petitioner belongs to scheduled caste which is recognised to be so, declared and so notified in U.P. and as the petitioner would continue to belong to scheduled caste even after his migration from U.P. to M.P. he would be entitled to employment under the respondent No. 1. Learned counsel for the petitioner submits that it is immaterial for the disposal of the present petition whether the land was acquired in M.P. or not and whether the presidential order does not declare Baiswar as a scheduled caste in M.P. for the State of M.P. According to him, if a man belonging to scheduled caste in some State migrates from that State to any other State he would carry his caste with him and the benefits extended to him being a person belonging to scheduled caste would be available to him in the migrated State. Learned counsel for the petitioner submits that in view of the judgment of the Supreme Court in the matter of Banwasi Seva Ashram (supra), the respondents are required to be directed to provide employment to the land oustee. 5. Learned counsel for the respondents establishment submits that under the provisions of Article 341 of the Constitution of India, it is the President alone who should in consultation with the Central Government would issue a notification declaring that what caste would fall within the scheduled caste and for what particular area. According to him Baiswar may be so recognised as a scheduled caste in U.P. but the person belonging to Baiswar caste would not be entitled to any benefit in M.P. because in M.P. State Baiswar have not been declared to be belonging to scheduled caste. I have heard the parties at length. 6. In the matter of Banvasi Seva Ashram (supra), a summary of rehabilitation-package was filed on record by the counsel showing that at least 678 families were ousted from the land. The Supreme Court exercising powers under Article 142 of the Constitution of India directed that certain measures to rehabilitate the evictees who were in actual physical possession of the lands/houses etc. be taken by the NTPC in collaboration with the State Government. The Supreme Court directed that some land be allotted to them, some shifting allowance free transportation, subsistence allowance etc. be also provided; certain post be kept vacant so that employment be provided to the land oustees. The said judgment do not say that whenever a person is ousted, the authority for whom the land has been acquired is under obligation under the law to provide for employment. be also provided; certain post be kept vacant so that employment be provided to the land oustees. The said judgment do not say that whenever a person is ousted, the authority for whom the land has been acquired is under obligation under the law to provide for employment. To provide for employment to the land oustee may flow from the statute, under the rules, under the scheme on which land is to be acquired or in the rehabilitation programme which may be undertaken by the authority for whom the land has been acquired. Provisions of Section 4/6 of Land Acquisition Act do not provide that the land can be acquired only on providing the employment. The provisions of Land Acquisition Act provide that whenever a man is ousted from his property, proper compensation solatium and interest could be paid to him. The Land Acquisition Act under which the land is acquired does not provide that a particular person who has been paid fullest compensation would be entitled to employment. As observed above, it is only if the scheme for acquisition or the agreement between the Government and the undertaking provides that employment shall be provided to the land oustees only then the establishment would be obliged to provide employment to such persons and the land oustee can claim a right placing reliance on the terms of the acquisition because in such a case the acquisition would be conditional. 7. So far as the rights of a party declared to be scheduled caste or scheduled tribe in a particular State are concerned there would be no dispute nor any problem in providing the benefits. The problem arises only when the person belonging to a particular caste declared and notified to be a Scheduled Caste in a particular State and for that State migrates from that State to any other State, where the other State does not provide for a reservation in favour of such a person nor does accept him as a person belonging to Scheduled Caste. 8. 8. Article 341 provides that the President may after consultation with the Governor, with respect to any State or Union Territory, and where it is a State thereof by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Caste in relation to that State or Union Territory, as the case may be. The parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe, or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 9. Submission of the learned counsel for the petitioner is that whenever a man travels from one State to another he carries his personal law and caste with him, therefore the benefits available to him in his home state would be available to him in the migrated State. The question has been considered by the Supreme Court in the matter of Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical College, (1990) 3 SCC 130 . In the said matter, the petitioner was born in Andhra Pradesh in Gouda Community which was recognised as Scheduled Tribe in State of Andhra Pradesh. Petitioner's father after obtaining a Scheduled Tribe certificate got an employment in Scheduled Tribe quota in Government of India undertaking and was posted in Bombay in Maharashtra. The said petitioner came to live in Bombay at the age of 9 years and after passing the 12th Standard examination, he submitted his application for admission to the medical college seeking benefits of reservation in favour of the Scheduled Tribes. He was denied admission to M.B.B.S. Course though Scheduled Tribe candidates who had secured lesser marks than him were given admission. The question posed before the Supreme Court was that whether the said petitioner who was recognised as belonging to Scheduled Tribe in Andhra Pradesh would be treated to be a Scheduled Tribe in Maharashtra and would he be entitled to the benefits of reservation available to Scheduled Tribe so notified in Maharashtra for Maharashtra. The question posed before the Supreme Court was that whether the said petitioner who was recognised as belonging to Scheduled Tribe in Andhra Pradesh would be treated to be a Scheduled Tribe in Maharashtra and would he be entitled to the benefits of reservation available to Scheduled Tribe so notified in Maharashtra for Maharashtra. The Supreme Court after considering the provisions of Articles 341 and 342 taking into consideration the language of the Constitution specially the words 'for the purposes of this Constitution' and 'in relation to that State' came to the conclusion that Scheduled Castes and Scheduled Tribes belonging to a particular area of the country are entitled to the benefits in that particular State where they have been so declared but would not be entitled to any benefits in other States who have not recognised them as belonging to Scheduled Caste or Scheduled Tribe. The Supreme Court observed that the statutory and constitutional provisions should be interpreted broadly and harmoniously. Where there is a conflict between the two provisions it should be interpreted as to give effect to both. Nothing is surplus in a constitution and no part should be made redundant. So construed, it must be held that reservation made in respect of the Scheduled Caste or Scheduled Tribe of that State is so determined to be entitled to all the privileges and rights under the constitution in that State. The Supreme Court further observed that a person belonging to Scheduled Caste or Scheduled Tribe can only enjoy the protection of the Scheduled Caste or Scheduled Tribe but he cannot enjoy the protection of non-Scheduled Tribes or Castes in addition to the existing fundamental rights. 10. The observations made in case of Marri Chandra (supra) came for consideration before the Supreme Court in the matter of Action Committee v. Union of India, (1994) 5 SCC 244 . The Supreme Court after approving the observation made in case of Marri Chandra (supra) observed that a given Caste or Tribe can be Scheduled Caste or Scheduled Tribe in relation to that State or Union Territory for which it is notified. The Supreme Court was of the opinion that considerations for specifying a particular caste or Tribe or class for inclusion in the list of S. Cs/S.Ts. The Supreme Court was of the opinion that considerations for specifying a particular caste or Tribe or class for inclusion in the list of S. Cs/S.Ts. 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. The Supreme Court after approving the observations made in Marri Chandra's case clearly held that a person declared to be a notified Scheduled Caste would be entitled to the benefits of reservation etc. in that State where the Caste has been so declared and not in any other State. 11. The legal position is clear. In view of the said legal position it can unhesitatingly be held that Baiswar though is a declared/notified Scheduled Caste in State of U.P. would not be entitled to any benefit in State of M.P. where he has migrated settled or has acquired land. 12. The question for further consideration is whether a person should only be a land oustee and should also belong to the Scheduled Caste. In the present case, the fulcrum on which the question moves is that the petitioner belonged to Scheduled Caste and as he is land oustee, he is entitled to employment. The petitioner certainly is land oustee in Madhya Pradesh but in absence of any law, agreement, rules etc. they would not be entitled to an employment with respondent-establishment simply because he is land oustee. The petitioner would certainly be entitled to the benefit of caste in Uttar Pradesh but unfortunately his land has been acquired in Madhya Pradesh. If the requirements are conjoint must exists together then it would not be possible to hold that though the land is acquired in Madhya Pradesh and petitioner is declared to be Scheduled Caste in Uttar Pradesh therefore he is entitled to an opportunity of employment. 13. If the requirements are conjoint must exists together then it would not be possible to hold that though the land is acquired in Madhya Pradesh and petitioner is declared to be Scheduled Caste in Uttar Pradesh therefore he is entitled to an opportunity of employment. 13. Contentions of the learned counsel for the petitioner that the respondent-establishment is controlled and governed by the Central Government, therefore, every person belonging to Scheduled Caste in each and every State would be entitled to job opportunities in whole of the country because the Central Government cannot say that they would not provide job opportunity to a land oustee simply on the ground that he is not declared as Scheduled Caste in a particular State, is misconceived. The benefit must flow in favour of the person belonging to S.C./S.T. in a particular State where the caste or tribe has been so declared. The catena of authorities clearly provide that no Court would have jurisdiction to read or delete something from the order declaring a caste or tribe as S. C. or S. T. In the matter of Palghat Jilla Thandan Samudhaya Samrakshna Samithi v. State of Kerala, 1994 (1) SCC 359 , the Supreme Court has observed that the Court cannot even enter into interpretation of the presidential order to enter into an enquiry or lay in evidence to determine whether or not some particular community falls within it or outside. It is not open to the Court to question the validity of the president determination that a particular caste or tribe is a Scheduled Caste or Scheduled Tribe. In the present matter, Baiswar has not been included in the list of Scheduled Caste provided for Madhya Pradesh if they cannot be recognised as member belonging to Scheduled Caste in Madhya Pradesh they would not be entitled to any benefit simply on the ground that Baiswar have been declared to be Scheduled Caste in Uttar Pradesh. Considered from any angle, the petitioners are not entitled to any relief from the Court. The petitions deserve to and are accordingly dismissed. 14. There shall be no orders as to cost. Security amount if any, be refunded back to each of the petitioner, after due verification.