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2003 DIGILAW 940 (ALL)

Sunil Kumar v. Life Insurance Corporation

2003-04-24

D.P.GUPTA, SUDHIR NARAIN

body2003
JUDGMENT : 1. The Petitioner seeks to quash the order dated 25.4.2000 (Annexure-1 to the writ petition) passed by the Respondent No. 3 whereby he has been removed from service on the ground that he had obtained a caste certificate from Rajasthan but regarding in Uttar Pradesh where on such caste certificate, he is not entitled to be appointed in service. 2. The version of the Petitioner is that he is a resident of Rajasthan and belongs to Mina caste. Mina caste has been notified as Scheduled Caste by the President of India as mentioned in Part 13 of the Schedule of the Constitution (Scheduled Tribes) Order, 1950, wherein item No. 9 Mina community has been shown as Scheduled Tribe. 3. Respondent No. 3 advertised certain posts of Apprentice Development Officer. The Petitioner along with other candidates applied on 2.2.1999 for the said post. He was called for a written test and interview. He was selected and was appointed on 23.7.1999 under the Scheduled Tribes quota. He was posted at Agra on 26.7.1999. Certain complaints were made against him that as he was a resident of Rajasthan and belongs to Mina community which is taken as a Scheduled Tribe in Rajasthan but he has taken appointment in Uttar Pradesh where Mina community is not recognised as a Scheduled Tribe. It was alleged that the appointment of the Petitioner was illegal. Respondent No. 3 taking the view that Mina community has not been declared as a Scheduled Tribe in Uttar Pradesh, he is not entitled to continue and passed the impugned order removing him from service. 4. The question is whether the Petitioner, on the basis of the certificate of Scheduled Tribe in the State of Rajasthan, is entitled to be appointed in Uttar Pradesh in respect of the post of Apprentice Development Officer of the Life Insurance Corporation. There is no dispute that the Petitioner belongs to Mina community of State of Rajasthan. 5. Dr. R. G. Padia, senior counsel for the Respondents, submitted that under Article 342 of the Constitution, the President, by notification specifies the Tribes or Tribal communities or parts of or groups within Tribes or Tribal communities for the purpose of the Constitution be taken as Scheduled Tribes in relation to that State or Union Territory, as the case may be but he cannot be treated as Scheduled Caste/Scheduled Tribe in another State. The President, in fact, has notified certain Tribes as Scheduled Tribes of Rajasthan, which have been mentioned in part 13 of the Schedule of the Constitution (Scheduled Tribes) Order, 1950. Mina community has been shown as Scheduled Tribe under item No. 9 of part 13 of the said Schedule. 6. It is contended that if a candidate is a Scheduled Tribe in a particular State, such candidate may not be treated as Scheduled Tribe in other States unless he is specified as Scheduled Tribe in that State also. He has placed reliance on two decisions of the Apex Court, namely, Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and Others, (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the Action Committee on Issue of Caste Certificate to scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Vs. Union of India (UOI) and Another, (1994) 5 SCC 244 . 7. In Marri Chandra Shekhar Rao (supra), the Petitioner had obtained admission in Medical College run by Bombay Municipal Corporation. The question was whether the Petitioner, who was Scheduled Caste in the State of Andhra Pradesh, was entitled for admission in the College run by Bombay Municipal Corporation. In that context the Apex Court observed that if a person in one State may be Scheduled Caste/Scheduled Tribe but he may not be entitled for the benefit in another State. In Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. (supra) the Petitioners therein were claiming the benefits and privileges available to the Scheduled Caste and Scheduled Tribe in the State of Maharashtra and it was held that they were not entitled to the benefits and privileges in that State. The State Government may give benefit of reservation to the Scheduled Castes/Scheduled Tribes of its own State and not of other States for many reasons. 8. The question is when a person belonging to Scheduled Caste/ Scheduled Tribe of another State seeks employment, etc. in another State which has not declared such community or person belonging to Scheduled Castes/Scheduled Tribe whether such person is entitled to seek employment in another State. 8. The question is when a person belonging to Scheduled Caste/ Scheduled Tribe of another State seeks employment, etc. in another State which has not declared such community or person belonging to Scheduled Castes/Scheduled Tribe whether such person is entitled to seek employment in another State. The answer of the question will depend upon as to whether such advertisement prevents such person from getting employment on the basis of the caste certificate issued by another State. In Union of India and Others Vs. Dudh Nath Prasad, AIR 2000 SC 525 , it was held that if the candidate for IAS belonging to Nuniya caste, born and educated in Bihar but shifted to West Bengal where such caste is treated as Scheduled Caste and he applies for the service, he can be treated as belonging to Scheduled Caste. In Sanjay Kumar Singh and others Vs. State of U. P. and others, (2000) 3 AWC 2239 , the Division Bench held that if a person belongs to Scheduled Tribe of a different State, still he could claim reservation under Scheduled Castes/ Scheduled Tribes quota if there is no prohibition in that respect. The facts in that case were that the Petitioner therein had applied for appointment conducted by the U.P. Public Services Commission for Combined State/Upper Subordinate Service (Preliminary) Examination, 1994, on the basis of that he is a Scheduled Tribe of the State of Nagaland. He was declared successful in the examination but later on, his result was cancelled. The Division Bench, after discussing the aforesaid decisions of the Supreme Court, referred to above, held that unless there is a specific bar in the State where the employment is sought, a person can seek employment. The Court observed as under: The Petitioner, therefore, has been able to prove all the facts of his belonging to Scheduled Tribe of the State of Nagaland. Simultaneously, the law and the relevant provisions quoted above did not bar the extending of the benefit of the reservation of 2% in public services to Scheduled Tribe candidates of other State. The Court observed as under: The Petitioner, therefore, has been able to prove all the facts of his belonging to Scheduled Tribe of the State of Nagaland. Simultaneously, the law and the relevant provisions quoted above did not bar the extending of the benefit of the reservation of 2% in public services to Scheduled Tribe candidates of other State. It is not a question that the Petitioner's joining, if accepted, would increase the list of Scheduled Tribes as prevalent in the State of U.P. but it is a question whether a citizen of India, may be belonging to a different State, can rightly claim the reservation which is available to the Scheduled Tribe candidate of the State where he is presently living. There is no law and no provision has been brought to the notice of the Court which will limit the said reservation quota to be extended only to citizen of the State of U.P. The Petitioner has claimed that he should be extended the said benefit being a candidate of Scheduled Tribe of the State of Nagaland. That claim has to be upheld and sustained so long as there is no such Government Order or circular as has been issued by the Government of Maharashtra which have been noticed in the decisions cited above. 9. The President under Article 342 of the Constitution notifies the Tribes of a State as Scheduled Tribe. It may be that in that State such Tribes on account of disadvantage and social hardship suffered by that caste or group in that State is entitled for declaration that they belong to Scheduled Caste or Scheduled Tribe but in another State such hardship or social disadvantage may not exist and such State may not treat such caste or tribe as Scheduled Caste/Scheduled Tribe. It may also be that such caste or tribe is not residing in another State but if a person belonging to Scheduled Tribe of another State seeks employment on the basis of an advertisement issued in another State and such advertisement does not at all prevent a person belonging to Scheduled Caste/Scheduled Tribe of another State, there is no bar that such person may be permitted to appear in the examination for selection to the post advertised. 10. The Petitioner has filed a copy of the advertisement. 10. The Petitioner has filed a copy of the advertisement. The note made in the advertisement reads as under: Approximately 100 posts of Apprentice Development Officers are proposed to be filled in by various offices of the Corporation under the jurisdiction of Zonal Managers, Kanpur. The selection/ appointment will be subject to the reservation of S.C./S.T./O.B.C. as per standing rules. 11. The Respondents have not shown that there was any bar that the candidates of other States belonging to Scheduled Caste/Scheduled Tribe were not entitled to the benefits of the reservation of Scheduled Caste/ Scheduled Tribe/Other Backward Classes for the posts advertised by the Respondents. 12. In view of the above, the writ petition is allowed and the order dated 25.4.2000 is hereby quashed. However, in the facts and circumstances of the case, the parties shall bear their own cost.