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2005 DIGILAW 46 (CHH)

RAJ KAPOOR KACHWAHA v. STATE OF C. G.

2005-02-04

L.C.BHADOO

body2005
ORDER As per Hon'ble Shri L.C. Bhadoo, J. 1. The petitioners by this writ petition under Article 226/227 of the Constitution of India, have questioned the propriety and correctness of the order dated 6-8-2004 issued by respondent NO.2, whereby respondent NO.2 ordered that petitioner NO.2 is not entitled for admission in the Government Engineering College on the basis of the Scheduled Caste certificate granted in favour of him. 2. Brief facts leading to filing of this writ petition are that petitioner No.2 is the son of petitioner No.1. Petitioner No.2 is a student and his mother Smt, Krishna Khatik is working as Chief Municipal Officer in the State of Chhattisgarh. After re-organization of the State of Madhya Pradesh on 1st November, 2000, petitioner No.2 is mother was allocated to the State of Chhattisgarh on her option under Annexure P-1. Petitioner No.2 applied for appearing in the Pre-Engineering Test, which was held by the Board of Secondary Education on 4th & 5th June, 2004. petitioner No.2 applied for the said test as a Scheduled Caste category candidate. He also filed the caste certificate (Annexure P-5) issued in his favour on 10-1-2002 by the Sub Divisional Officer, Ambikapur. He also filed the domicile certificate Annexure P-6. Petitioner No.2 secured the renk 02115/00092 in the said test and he was called to appear in the counselling. A communication (Annexure P-8) to that effect was sent to him. Accordingly, he appeared in the counselling and during the course of counselling, respondent No.2, the authorized officer, passed order to the effect that the petitioners' fore-fathers were residents of Katni on 10-8-1950, therefore, he is not entitled for the reservation benefit, and per-force petitioner No.2 had to take admission as a general category candidate. Petitioner No.2 had questioned the said decision on the ground that his mother Smt. Krishna Khatik was allocated to the Slate of Chhattisgarh and she is working as Chief Municipal Officer in the State of Chhattisgarh. The petitioners belong to Khatik caste, which is classified as Scheduled Caste under the Presidential Order for the State of Madhya Pradesh, as well as the Khatik caste has also been notified as Scheduled Caste in the State of Chhattisgarh. The petitioners belong to Khatik caste, which is classified as Scheduled Caste under the Presidential Order for the State of Madhya Pradesh, as well as the Khatik caste has also been notified as Scheduled Caste in the State of Chhattisgarh. The State of Chhattisgarh vide its circular dated 6th July, 2004, has issued a circular that the children of Government servants or any other servants of Corporation Board or Public Undertaking who have been allocated to the State of Chhattisgarh upon re-organization of the State, will be granted caste certificate and will be entitled for the benefit of reservation on the basis of involuntary migration. The said circular is Annexure P-12. Therefore, the petitioners have prayed for issuance of writ of certiorari quashing the order dated 6-8-2004 issued by respondent No.2 and for direction to the State by a writ of mandamus to consider the petitioner's case on the basis of caste certificate of Scheduled Caste. 3. Return has been filed on behalf of the respondents/State in which it has been mentioned that petitioner No.1 who is the father of petitioner No.2 is a resident of District: Katni, State of Madhya Pradesh. The Khatik caste has been notified as Scheduled Caste under the Presidential Order issued under Article 341 of the Constitution of India for the State of Madhya Pradesh. Petitioner No.2 's mother has been allocated to the State of Chhattisgarh on her option being made voluntarily for the State of Chhattisgarh. The certificate in question issued in favour of petitioner NO.2 shows the petitioner as Scheduled Caste candidate in relation to the State of Madhya Pradesh. It is incorrect to say that by virtue of the M.P. Reorganization Act, 2000, if Khatik caste is also included in Chhattisgarh as Scheduled Caste will give any benefit or right to petitioner NO.2 who is admittedly the Scheduled Caste candidate of Madhya Pradesh. As regards the issuance of certificate in favour of petitioner No.2 by the S.D.O., Ambikapur, is concerned, the same is not in accordance with the Government of India, Ministry of Home Affairs' circular dated 22-3-1977 also the circular dated 22-2-1985, and also in view of the Constitution Bench's judgment of the Apex Court in the matter 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. Union of India and another. It is submitted that the allocation of Smt. Krishna Khatik, the mother of petitioner NO.2, to the State of Chhattisgarh was voluntary as she herself opted for the State of Chhattisgarh, otherwise, as per her residence she could have been allocated to the State of Madhya Pradesh. In the circumstances, the petitioners have not suffered any prejudice. The issuance of circular Annexure P-12 by the State of Chhattisgarh is admitted, but petitioner No.2 is not entitled for any benefit from the same as the migration of petitioner No.2 is mother was voluntary, whereas, the said circular relates to involuntary migration. The migration of petitioner No.2 is mother was not involuntary, under any arrangement or per-force, but she opted on her own for the State of Chhattisgarh, which is evident from Annexure P-1. The Commissioner, Tribal Department, State of Chhattisgarh has already vide letter dated 12-8-2004 already raised objection before the General Administration Department, State of Chhattisgarh for its re-consideration. Copy of the said letter is Annexure R-4. Therefore, the petitioners are not entitled for any benefit. 4. Rejoinder has also been filed on behalf of the petitioners. 5. I have heard learned counsel for the parties. 6. Learned counsel for the petitioners argued that in the first instance, the caste khatik has been notified as Scheduled Caste in the State of Madhya Pradesh as well as in the State of Chhattisgarh. Earlier, the State of Chhattisgarh was part of Madhya Pradesh and considering the suffering, disabilities and hardship of Khatiks, they have been classified as Scheduled Caste. Therefore, by merely bifurcation of the State of Chhattisgarh benefit of ,Scheduled Caste cannot be denied to the petitioners. He also urged that particularly in view of the circular Annexure P.12 issued by the State of Chhattisgarh, the mother of petitioner No.2 who is working as Chief Municipal Officer was allocated to the State of Chhattisgarh after reorganization of the State, therefore, that is her involuntary migration to the State of Chhattisgarh. As such, petitioner No.2 is entitled for consideration as Scheduled Caste candidate in view of the circular Annexure P- 12. In this connection, learned counsel placed reliance on the order of the Apex Court in the matter of Sudhakar Vithal Kumbhare Vs. Stale of Maharashtra and others. 7. As such, petitioner No.2 is entitled for consideration as Scheduled Caste candidate in view of the circular Annexure P- 12. In this connection, learned counsel placed reliance on the order of the Apex Court in the matter of Sudhakar Vithal Kumbhare Vs. Stale of Maharashtra and others. 7. On the other hand, learned Deputy Advocate General vehemently opposed the arguments advanced by learned counsel for the petitioners on the ground that it is admitted position that the father of petitioner No.2 is resident of Katni, State of Madhya Pradesh since fore-fathers, and in the year 1950 when the Presidential Order notifying the Khatik caste as Scheduled Caste, petitioner No.1 and his father were residing at Katni. In view of the judgment of the Apex Court in Action Committee s ease, as also in the cases of Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and others and U.P. Public Service Commission, Allahabad Vs. Sanjay.Kumar Singh, petitioner No.2 is not entitled for the benefit of reservation as he belong to the State of Madhya Pradesh. His place of origin is in Madhya Pradesh. He further argued that petitioner No.2 is not entitled for any benefit under the circular Annexure P-12 issued by the State of Chhattisgarh for the reason that the mother of petitioner No.2 herself opted for the State of Chhattisgarh at the time of re-organization. Therefore, it cannot be said to be involuntary migration. Learned Deputy Advocate General also explained that even otherwise also the mother of petitioner No.2 has been allocated to the State of Chhattisgarh, whereas, as per the circular Annexure R-2 issued by the Union of India, if the father or guardian of a candidate is migrated involuntarily, then and then only certificate can be issued by the authority showing his caste and status of place of origin and not for the place his mother has migrated. Petitioner No.1 who is father of petitioner No.2 is still residing at Katni, therefore, petitioner No.2 is not entitled for the benefit of Annexure P-12. 8. While referring to the order in Sudhakar Vithal's ease relied upon by learned counsel for the petitioners, learned Deputy Advocate General argued that on facts that case is distinguishable with the present case. Petitioner No.1 who is father of petitioner No.2 is still residing at Katni, therefore, petitioner No.2 is not entitled for the benefit of Annexure P-12. 8. While referring to the order in Sudhakar Vithal's ease relied upon by learned counsel for the petitioners, learned Deputy Advocate General argued that on facts that case is distinguishable with the present case. In that case on re-organization of the State of Maharashtra, the Chhindwara region, which was dominated by the Halba/Halbi Scheduled Tribe Caste was bifurcated, therefore, the Apex Court held that since the same region was bifurcated which was predominantly habituated by the Halba/Halbi caste, the matter ought to have been examined by the Committee constituted as per the Apex Court's judgment in the case of Kumari Madhuri Patil (I) Vs. Addl. Commissioner, Tribunal Development Whereas, the present case is not a case of bifurcation of a region. District Katni to which the petitioners belong has not been bifurcated, as such, the petitioners are not entitled for the benefit of the same. He further argued that as per Article 341 (1) of the Constitution of India, only the president by public notification, specify the castes. As per clause (2) of Article 341, only 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. The circular Annexure P-12 has been issued by the State, therefore, the State was not competent to issue the said circular. Therefore, the Commissioner, Tribal Welfare, has already moved the General Administration Department of the State Government to recall the circular Annexure P-12. 9. Whereas, learned counsel for the petitioners argued that in view of the Constitution Bench judgment of the Apex Court in the matter of E.V. Chinnaich Vs. State of Andhra Pradesh and others (paras 120 & 122), the State is entitled to issued a circular. He further argued that since the State/ respondents have not questioned the vires of the circular. Annexure P-12, therefore, at this stage, the State is not en tilled to raise this objection. 10. Having heard learned counsel for the parties, I have perused the record and considered relevant case laws on the point. He further argued that since the State/ respondents have not questioned the vires of the circular. Annexure P-12, therefore, at this stage, the State is not en tilled to raise this objection. 10. Having heard learned counsel for the parties, I have perused the record and considered relevant case laws on the point. First of all in the year 1990, a similar issue came up for consideration before the Constitution Bench of the Apex Court in the matter of Marri Chandra (supra), in which the Apex Court in para 10 of the judgment held that: "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 in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas." After this Constitution Bench judgment, again a question came up before the Constitution Bench of the Apex Court in the matter of Action Committee' (supra) in which in para 1 of the judgment following question was formulated for consideration: "Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be Scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/ or Scheduled Tribes in State B ? The Constitution Bench answered the question in negative interpreting Articles 341 & 342 of the Constitution of India and 'observed that: "What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. The Constitution Bench answered the question in negative interpreting Articles 341 & 342 of the Constitution of India and 'observed that: "What is important to notice is that 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." Again in para 16 of the judgment, the Court further held that: "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 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 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 Articles 341 and 342 of the Constitution." Again in the matter of M.C.D. Vs. Veena and others, the Apex Court in para 6 of its judgment held that: "The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different." 11. Therefore, in view of the above judgments of the Apex Court, it is clear that even if a particular caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different, looking to the degree or disadvantages of various elements which constitute the data for specification may also be entirely different. In view of the above law laid down by the Apex Court even if the Khatik caste has been notified as Scheduled Caste in the State of Chhattisgarh, the petitioners being residents of Katni, State of Madhya Pradesh automatically do not entitle for the same benefit which are available to the persons of the Khatik caste who are residents of the State of Chhattisgarh as there may be different considerations and degree of disadvantages or various elements which constitute the Khatik caste as Scheduled Caste in the States of Madhya Pradesh & Chhattisgarh. Therefore, petitioner No.2s father being resident of Katni, State of Madhya Pradesh, petitioner NO.2 is not automatically entitled for the benefit of Scheduled Caste on parity with the persons of Khatik community of State of Chhattisgarh because, the Khatik community of Madhya Pradesh was classified as Scheduled Caste in respect of the State of Madhya Pradesh under the Constitution, whereas the Khatiks of the State of Chhattisgarh have been classified as Scheduled Caste by the Act of Parliament (M.P. Re-organization Act, 2000) under clause (2) of Article 341 of the Constitution in respect of the State of Chhattisgarh under the Constitution. 12. Now, coming to the judgment relied upon by learned counsel for the petitioners in the matter of Sudhakar Vithal (supra), the facts of that case were entirely different because, upon re-organization of the States of Maharashtra and Madhya Pradesh, Chhindwara region was bifurcated which was predominantly habituated by Halba/Halbi caste. 12. Now, coming to the judgment relied upon by learned counsel for the petitioners in the matter of Sudhakar Vithal (supra), the facts of that case were entirely different because, upon re-organization of the States of Maharashtra and Madhya Pradesh, Chhindwara region was bifurcated which was predominantly habituated by Halba/Halbi caste. That is why looking to the peculiar facts and circumstances of that case, the Apex Court held that since people belonging to Halba/Halbi caste of Chhindwara region whether came in the part of Madhya Pradesh or in the part of Maharashtra were on the similar footing and as such, the Court held that in order to find out their status as to whether they both are entitled for similar benefit, the State of Maharashtra before considering the case of the appellant ought to have referred the same to Scrutiny Committee constituted as per the directions of the Apex Court in the matter of Kumari Madhuri Patil. As such the petitioners are not entitled for the benefit of the above judgment. On account of reorganization of the State of Madhya Pradesh as the petitioners belong to Katni, State of Madhya Pradesh, and the Khatiks of the State of Chhattisgarh, are not from the same region. 13. Now coming to the question whether petitioner No.2 is entitled to have the benefit of circular Annexure P-12 issued by the State of Chhattisgarh which envisages that on account of re-organization of the State of Madhya Pradesh, the formation of new State of Chhattisgarh, the employees of M.P. cadre who have been allocated to the State of Chhattisgarh, such employees and their family members will be entitled for the benefit of Scheduled Caste, Scheduled Tribe and Other Backward Classes. In the first instance, here the petitioners have not become the residents of State of Chhattisgarh for the reason that petitioner NO.1 who is the father of petitioner NO.2 is still residing in Katni and having his agricultural land there. Petitioner NO.1 settled there and still continuing there. He has not shifted to the State of Chhattisgarh and the same thing, petitioner NO.2 has mentioned in Form 14 at the time of counselling. Moreover, petitioner NO.1 who is the father of petitioner NO.2 is.not a Government employee, but he is an agriculturist in the State of Madhya Pradesh. Petitioner NO.1 settled there and still continuing there. He has not shifted to the State of Chhattisgarh and the same thing, petitioner NO.2 has mentioned in Form 14 at the time of counselling. Moreover, petitioner NO.1 who is the father of petitioner NO.2 is.not a Government employee, but he is an agriculturist in the State of Madhya Pradesh. Therefore, petitioner NO.2 cannot take advantage of the circular Annexure P-12 issued by the State of Chhattisgarh in respect of those employees who have migrated to Chhattisgarh on account of allocation of their services to the State of Chhattisgarh. In this connection, if we look into the circular dated 22nd February, 1985 (Annexure R-2), in which the Central Government clarified that persons belonging to Scheduled Caste and Scheduled Tribe who have migrated from one State to another for the purpose of seeking education, employment etc. experiencing great difficulty in obtaining the caste or tribe certificate from the State from which they have migrated, in order to remove this difficulty it has been decided to modify the instructions of 22nd March, 1977 and letter of 1982. The prescribed authority of the State Government may issue certificate to a person who has migrated from another State. On the production of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. 14. Petitioner NO.2 is claiming the benefit of Scheduled Caste on the basis of Annexure P-12 issued by the State of Chhattisgarh as his mother Smt. Krishna Khatik has been allocated to the State of Chhattisgarh and she is working as Chief Municipal Officer. In the first instance, as per clause (b) of Section 4 of the Hindu Minority and Guardianship Act, 1956 (for short 'the Act'), in the first category, guardian means a natural guardian "Natural guardians of a Hindu minor". as per Section 6 of the Act first comes father and thereafter mother. Petitioner NO.1 is the father of petitioner NO.2 who is not in Government service. As such, mother guardianship cannot be taken into account in the present context. Therefore petitioner NO.2 is not entitled for any benefit of the circular Annexure P-12. as per Section 6 of the Act first comes father and thereafter mother. Petitioner NO.1 is the father of petitioner NO.2 who is not in Government service. As such, mother guardianship cannot be taken into account in the present context. Therefore petitioner NO.2 is not entitled for any benefit of the circular Annexure P-12. In this respect, in para 23 of the Marri Chandra s case3 (supra), the Constitution Bench of the Apex Court observed that: "Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education." "Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration." 15. Therefore, unless any specific provision is made by the Parliament, as has been held by the Apex Court, even the children of Government employees on account of involuntary migration are not entitled for any benefit of reservation in respect of any facility or protection for continuance of study or admission. Therefore, unless any specific provision is made by the Parliament, as has been held by the Apex Court, even the children of Government employees on account of involuntary migration are not entitled for any benefit of reservation in respect of any facility or protection for continuance of study or admission. In this connection, the Parliament has not brought any legislation and more over, the father of petitioner NO.2, as has been mentioned above, is already residing in Madhya Pradesh i.e. in the State of origin. Therefore, petitioner NO.2 is not entitled for any benefit. As per the scheme of Article 341 of the Constitution of India, the State is not entitled for issuance of any circular after issuance of the Presidential Notification under clause. (1) of' Article' 341. As per the provisions of clause (2) of Article 341, only the parliament can legislate on the subject. In this connection, I am fortified with the decision of the Constitution Bench of the Apex Court in the matter of E.V. Chinnaiah (supra) in which case the State Legislature of Andhra Pradesh in order to. give appropriate representation to every groups of the Scheduled Caste categorized the Scheduled Caste in four groups by A.P. Act 20 of 2000 which was challenged before the High Court and the matter reached the Apex Court. give appropriate representation to every groups of the Scheduled Caste categorized the Scheduled Caste in four groups by A.P. Act 20 of 2000 which was challenged before the High Court and the matter reached the Apex Court. The Constitution Bench of the Apex Court in para 21 of the judgment held that: "any 'executive action or legislative enactment which interferes, disturbs, re-arranges, re-groups or re-c1assifies the various castes found in the Presidential List will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution." It was also held that: "the State cannot claim legislative power to make a law dividing the Scheduled Castes List of the State by tracing its legislative competence to Entry 41 of List II or Entry 25 of List III" Therefore, once by the Presidential Order a particular caste has been notified as Scheduled Caste or Scheduled Tribe in respect of a State of origin, thereafter, only the Parliament is the competent authority, as per clause (2) of Article 341 of the Constitution, to include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, In the circumstances, the State of Chhattisgarh was not competent to issue the impugned circular Annexure P-12 in order to give benefit to the children of Government employees who have been allocated to the State of Chhattisgarh, whereas their State of origin is Madhya Pradesh. 16. As far as the objection raised by learned counsel for the petitioners to the effect that the circular Annexure P-12 has been issued by the State of Chhattisgarh, and the competence of the State of issue that circular has not been questioned in the return filed by the State/respondents, therefore, without any specific pleading, now the learned Deputy Advocate General cannot argue about the incompetence of the State to issue the said circular. He placed reliance on the judgments Municipal Corporation of the City of Jabalpur Vs. State of Madhya Pradesh and another, and Piare Lal Vs. Union of India and others. 17. He placed reliance on the judgments Municipal Corporation of the City of Jabalpur Vs. State of Madhya Pradesh and another, and Piare Lal Vs. Union of India and others. 17. It is true that where any party try to raise question of fact or a mixed question of fact and law which has not been specifically pleaded in the petition, then that party cannot be allowed to agitate that issue at the time of hearing as the opposite party has not been able to meet that question and has no opportunity to meet that question. But, where any point is raised by a party which is purely a question of law or interpretation of the Constitution such an issue can certainly be raised by way of argument as except the interpretation of the constitutional provisions nothing more is required to be proved. In this case, on the point raised that the State Government of Chhattisgarh was not entitled to issue the circular Annexure P-12 in its executive power in view of the provisions of Article 341 of the Constitution of India, sufficient opportunity was given to learned counsel for the petitioners to meet this objection. Moreover, the petitioners themselves have placed reliance on the circular Annexure P-12 in the petition and they want to take benefit of the same. Therefore, in the circumstances, the constitutional validity of Annexure P-12 has to be tested and adjudicated upon, therefore, in the circumstances, the petitioners cannot be permitted to approbate and reprobate their stand seeking benefit of Annexure P-12 on the one hand, and at the same time, on the other hand, by saying that the constitutional validity of Annexure P-12 cannot be tested. Hence, there is no substance in the arguments of learned counsel for the petitioners that this circular (Annexure P-12) has not been challenged by the respondents/State in their return. Hence, there is no substance in the arguments of learned counsel for the petitioners that this circular (Annexure P-12) has not been challenged by the respondents/State in their return. The case laws cited by learned counsel for the petitioners is of no help looking to the facts and circumstances of the present case, as in the case of Municipal Corporation (supra) the Apex Court held that: "the question as to who is a transferor, is obviously a question of fact or at best a mixed question of law and fact and when a party in a Writ Petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated, at the stage of the arguments." Whereas, in the present case, purely legal question has been raised by the learned Deputy Advocate General and no question of fact or mixed question of law and fact has been raised. Similarly, in the matter of Piare Lal (supra), the Apex Court held that where the petitioner filed writ petition challenging various orders passed by State Government promoting officers junior to the petitioner, but later on, the President passed two orders dated 28-10-1996 superseding earlier orders of promotion and the petitioner's name not found in the subsequent orders, petitioner not amending his petition under Article 226 by including challenge to subsequent orders of the President, then the Court said that on account of the subsequent orders which were not challenged, the validity of the same cannot be examined. 18. In view of the above discussion and law laid down by the Apex Court in the matters of Action Committee, Marri Chandra, M.C.D. and looking to the facts of the present case, petitioner No.2 is not entitled for the benefit of reservation in the State of Chhattisgarh, even though Khatik caste has been notified as Scheduled Caste in the State of Chhattisgarh also. 19. In the result, the writ petition of the petitioners is liable to be dismissed and the same is dismissed. No order as to the costs. Petition Dismissed.