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2004 DIGILAW 1006 (MP)

Kailash Kumar v. Union of India

2004-12-13

DIPAK MISRA, U.C.MAHESHWARI

body2004
JUDGMENT Dipak Misra, J. 1. In this appeal preferred under clause 10 of the Letters Patent, the appellant has called in question the defensibility of the order passed by the learned single Judge on 26-10-1998 in WP No. 714/97. 2. The facts which are requisite to be stated are that the appellant who was the writ petitioner before the learned single Judge has claimed to be a 'gond' by caste. As putforth his father had come to Jabalpur in the year 1959 from Gajipur, Uttar Pradesh in search of livelihood. His father got employment in the Central Railway at Jabalpur. He retired from service on 31-3-1996. As pleaded the writ petitioner born at Jabalpur on 24-12-1966. It is urged in the petition that 'gond' caste in UP belongs to Scheduled Caste and M.P. it comes under Scheduled Tribes community. The petitioner obtained the Scheduled Caste certificate from the Office of the Collector, Jabalpur as per Annexure P-11 and applied to Railway Recruitment Board for clerical job. The petitioner qualified in the written examination as well as in the interview and eventually selected. The appellant was given the caste proforma as contained in Annexure P-12 by the Management to fill up and got it signed by the Deputy Collector, Jabalpur. Thereafter the appellant was medically examined on 1-12-1989 and found fit for clerical job as per Annexure P-15. He approached the respondent No. 2 for joining his duty but he was not allowed to join on the plea that he did not belong to Scheduled Tribe community in the State of Madhya Pradesh as his father belonged to State of Uttar Pradesh where 'gond' fall in the category of Scheduled Castes. 3. It is putforth that the appellant being aggrieved with the aforesaid action the respondents approached the Central Administrative Tribunal (in short 'the Tribunal'). The Tribunal vide judgment dated 20-6-1996 came to hold that the petitioner should have approached the authorities. The Tribunal further opined that it was difficult to issue any direction to the Deputy Collector to hold any inquiry as the Tribunal has no jurisdiction over the same. The Tribunal vide judgment dated 20-6-1996 came to hold that the petitioner should have approached the authorities. The Tribunal further opined that it was difficult to issue any direction to the Deputy Collector to hold any inquiry as the Tribunal has no jurisdiction over the same. The petitioner had filed Writ Petition No. 4155/1996 against the cancellation of the order of the Deputy Collector wherein this Court passed the following order : The petitioner is aggrieved by the action of the respondents 3 and 4 whereby, the certificate granted to him as a member of Scheduled Tribe community has been cancelled. The petitioner approached the Central Administrative Tribunal for the relief by filing OA No. 850/90 and the same has been disposed of by order dated 20th June, 1996. While disposing of the same the Tribunal observed that the petitioner should have approached the authority raising the question that his certificate could not have been cancelled without hearing him. Instead of approaching the authority, the petitioner has filed this writ petition. The petitioner shall approach the competent authority within 2 weeks from today and the competent authority after giving an opportunity to the petitioner shall decide the matter within 6 weeks thereafter. 4. After the order was passed by this Court the authority concerned dismissed the appeal without ascribing any reason. Being dissatisfied the petitioner invoked the extraordinary jurisdiction of this Court in Writ Petition No. 714/1997. The learned single Judge took note of the fact the caste certificate granted in his favour has been cancelled on 16-3-1990 and the said cancellation was made on an inquiry being made by the Railway at the time of recruitment of the petitioner as a candidate under the Scheduled Tribe category claimed by him. The learned single Judge expressed the view that the petitioner may have been born and brought up in the State of M. P while his father was posted in M.P. but on that basis he cannot claim status of being a Scheduled Tribe Gond in M.P. Learned single Judge referred to Annexures R-1 and R-2 which show gond is Scheduled Caste in Uttar Pradesh under the Constitution (Scheduled Castes) Order, 1950. The learned single Judge also took note of the fact that gond in Madhya Pradesh are Scheduled Tribes but in Uttar Pradesh they are Scheduled Caste and, therefore, the petitioner's father was Scheduled Caste and the petitioner only having been born in Madhya Pradesh could not have the status of Scheduled Tribe. 5. We have heard Mr. R. S. Bharti, Learned Counsel for the appellant and Mr. S. P. Sinha, Learned Counsel for the respondents. 6. It is submitted by Mr. Bharti that cancellation of the caste certificate is absolutely illegal as the appellant had obtained the same by the competent authority. The Learned Counsel has further submitted that the documents that had been annexed as per Annexures P-19, 22 and 23 in the writ petition have not been considered in proper perspective by the learned single Judge which makes the judgment untenable. It is further submitted that once the Railway Administration had accepted the caste certificate it could not have taken a somersault to deny the privilege of appointment to him. 6A. Mr. Sinha, Learned Counsel appearing for the respondents has submitted that there cannot be a change of status by remaining at a particular place. It is his contention that when the petitioner was afforded ample opportunity of hearing by the authorities before cancelling the certificate and when the facts are not in dispute the petitioner cannot take an advantage on the same. It is also putforth by him that the petitioner has not disputed as a matter of fact that gond community comes under the category of Scheduled Caste in the State of Uttar Pradesh and Scheduled Tribe in Madhya Pradesh. 7. The centripodal issue that arises for consideration is whether the petitioner can be treated to be a member of the Scheduled Tribe community. It is not in dispute that the petitioner was issued a caste certificate as a Scheduled Tribe on the foundation that he was Scheduled Tribe gond. At the time of recruitment he was treated as Scheduled Tribe candidate as claimed by him. As far as Uttar Pradesh is concerned in the Constitution (Scheduled Castes) Order, 1950 Gond features at item No. 36. In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967 in the Schedule type 'Gond' does not feature. Categories that feature are Bhotia, Buksa, Jannsari, Raji and Tharu. As far as Uttar Pradesh is concerned in the Constitution (Scheduled Castes) Order, 1950 Gond features at item No. 36. In the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967 in the Schedule type 'Gond' does not feature. Categories that feature are Bhotia, Buksa, Jannsari, Raji and Tharu. The Learned Counsel for the petitioner has submitted that determination of the caste in the State of Uttar Pradesh would not apply to the case at hand here. Mr. Bharti has submitted that the petitioner should be treated as per the description given by the State of M. P. 8. In this context, we may refer to the Constitution Bench judgment rendered in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and Another, (1994) 5 SCC 244 wherein it has been held as under: On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a 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 in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that subsequent notification. The castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. 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 may be totally different. Coincidentally it may be that a caste or tribe bearing the same nomenclature is 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 makes as is evident from the choice of language of Articles 341 and 342 of the Constitution." (quoted from the placitum) 9. We have referred to the aforesaid decision to highlight that a given caste or tribe can be Scheduled Caste or Scheduled Tribe in relation to a State or Union Territory in which it is specified. In the case at hand the father of the petitioner belonged to gond community in the State of Uttar Pradesh. His claim is that he having been born in the State of M.P. and his community falls in the category of Scheduled Tribe in the State of M.P. he should be given the benefit meant for Scheduled Tribe. As has been pointed out above the Constitution Bench has held that the caste or tribes can be Scheduled Caste or Scheduled Tribe in relation to the State in question. The petitioner even being Scheduled Caste in State of Uttar Pradesh, cannot deemed to be so in relation to any other State as his migration does not change his status. Once that is not possible, the contention that he should get the status of gond originally belonging to State of M.P. and be treated as Scheduled Tribe is absolutely untenable and unacceptable. In view of the aforesaid analysis we find there is no error on the part of the Railway Administration in not conferring the benefit on him as the benefit was claimed on the foundation that he was a Scheduled Tribe person. 10. Consequently, we do not find any infirmity in the order passed by the learned single Judge and accordingly the same is affirmed. 10. Consequently, we do not find any infirmity in the order passed by the learned single Judge and accordingly the same is affirmed. The Letters Patent Appeal stands dismissed without any order as to costs.