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2006 DIGILAW 260 (PNJ)

Parvinder Suman v. Haryana Public Service Commission, Chandigarh

2006-02-01

JAGDISH SINGH KHEHAR, S.N.AGGARWAL

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JUDGMENT S.N. AGGARWAL, J. 1. The petitioner is a resident of house No. 1135, Sector 34-C, Chandigarh and is practising as an Advocate in this Court since 1992. She belonged to Ad-dharmi caste. The said caste is also recognised as Scheduled Caste in the State of Haryana. She obtained certificate dated 26.5.1993 from Sub Divisional Magistrate, Chandigarh of her being Scheduled Caste as she belongs to Ad-dharmi caste. 2. The petitioner applied for Haryana Civil Services (Judicial) post in response to advertisement given by the Haryana Public Service Commission against the post reserved for the members of Scheduled Castes of Haryana. She had appeared in the written examination under roll number 345.The result was declared on 16.11.1996 and she was declared successful. Out of 108 candidates of general category who had qualified written examination, only 76 candidates were called for interview. Although her merit number was 43 but she was not called for interview. She was not even counted against the members of Scheduled , Caste category on the plea that she was not a resident of State of Haryana. 3. The case of the petitioner was that since she was a resident of Chandigarh which was the capital of state of Haryana, therefore, she belonged to the State of Haryana. Moreover, Ad- dharmi caste which was recognised as Scheduled Caste in Chandigarh was also recognised as Scheduled Caste in the State of Haryana and, therefore, she could not be discriminated and rejected from being called for interview. 4. Hence the instant writ petition. 5. The respondents have not disputed the factual position. Their only stand in the pleadings was that according to the instructions issued by the State of Haryana, the benefit of reservation in Scheduled Caste category is to be given only to such candidates who are residents of Haryana. Admittedly, the petitioner is not resident of Haryana. Therefore, she could not be considered against the posts reserved for Scheduled Caste Category in Haryana. 6. We have given our patient thought to the propositions of law involved in this case. So far as the submission of learned counsel for the petitioner that she was living in Chandigarh and Chandigarh being the capital of Haryana, therefore, she is resident of Haryana is concerned, the submission was made by the learned counsel for the petitioner half heartedly and we also find no merit in it. So far as the submission of learned counsel for the petitioner that she was living in Chandigarh and Chandigarh being the capital of Haryana, therefore, she is resident of Haryana is concerned, the submission was made by the learned counsel for the petitioner half heartedly and we also find no merit in it. Chandigarh is not a part of Haryana. It is a separate Union Territory and it has an independent entity. Merely because capital of Haryana is in Chandigarh, it does not’ make Chandigarh to be a part of State of Haryana. Therefore, merely because the petitioner is resident of Chandigarh, she cannot be considered to be a resident of Haryana. 7. The next submission of learned counsel for the petitioner was that the petitioner was domicile of India. She has the right to live any where in the country and since she carries a certificate of being a member of Scheduled Caste, she has to be considered to be a member of Scheduled Caste as even in the State of Haryana, Ad-dharmi caste is recognised as Scheduled Caste. In support of this submission, reference was made to the judgment of the Hon’ble Supreme Court reported as Dr. Pradeep Jain etc. etc. v. Union of India and others, A.I.R.1984 Supreme Court 1420 in which their Lordships have held that the Constitution recognises only one domicile, namely, domicile in India. 8. This proposition of law is not in dispute. However, the question to be determined, in this case, is whether a member of Scheduled Caste of one State or Union Territory can take benefit of being a member of Scheduled Caste in another State although the caste to which he or she belongs is also recognised to be a Scheduled Caste in the State in which he or she wants to take the benefit. This question has been finally determined by the Hon’ble Supreme Court in the judgment reported as Action Committee on issue of caste certificate to scheduled castes and scheduled tribes in the State of Maharashtra and another V. Union of India and another, (1994) 5 Supreme Court Cases 244. This question has been finally determined by the Hon’ble Supreme Court in the judgment reported as Action Committee on issue of caste certificate to scheduled castes and scheduled tribes in the State of Maharashtra and another V. Union of India and another, (1994) 5 Supreme Court Cases 244. The facts in the reported case were given in paragraph No.4 of the judgment as under:- “The petitioners herein are aggrieved because the State of Maharashtra has denied the benefits and privileges available to Scheduled Castes and Scheduled Tribes specified in relation to that State to members of the Scheduled Castes and Scheduled Tribes belonging to other States who have migrated from other States to the State of Maharashtra. These benefits and privileges are denied on the basis of certain circulars and letters issued by the Government of India and consequential instructions issued by the State of Maharashtra indicating that members belonging to the Scheduled Castes and Scheduled Tribes specified in relation . to any other State shall not be entitled to the benefits and privileges accorded by the State of Maharashtra unless the person concerned is shown to be a permanent resident of State of Maharashtra on 10-8-1950 in the case of Scheduled Castes and 6-9-1950 in the case of Scheduled Tribes. These are the dates on which the President first promulgated the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled tribes), Order 1950.” 9. On these facts, the following question came up for determination before the Hon’ble Supreme Court in the aforesaid judgment:- “Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a 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? - is the next question raised in this petition brought under Article 32 of the Constitution by one Shri Devidas Kuberdas Kantharia in his personal capacity as well as in his capacity as the Chairman of Petitioner I Committee.” 10. - is the next question raised in this petition brought under Article 32 of the Constitution by one Shri Devidas Kuberdas Kantharia in his personal capacity as well as in his capacity as the Chairman of Petitioner I Committee.” 10. Their Lordships discussed the provisions of Articles 341 and 342 and were pleased to hold as under:- “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. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition. “ Even the law laid down by the Hon’ble Supreme Court in Dr. Pradeep Jain V. Union of India, (1984) 3 SCC 654 was discussed and it was held as under: “The interpretation that the Court must put on the relevant constitutional provisions in regard to Scheduled Castes/Scheduled Tribes and other backward classes must be aimed at achieving the objective of equality promised to all citizens by the Preamble of our Constitution. At the same time it must also be realised that the language of clause (1) of both the Articles 341 and 342 is quite plain and unambiguous. It clearly states 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. It must also be realised that 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, when a class .is specified by the President, after consulting the Governor of State A, 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. True it is that this specification is not only in relation to a given State whose Governor has been consulted but is” for the purposes of this Constitution” meaning thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. True it is that this specification is not only in relation to a given State whose Governor has been consulted but is” for the purposes of this Constitution” meaning thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. The Constitution Bench has, after referring to the debates in the Constituent Assembly relating to these articles, observed that while it is true that a person does not cease to belong to his caste/tribe by migration he has a better and more socially free and liberal atmosphere and if sufficiently long time it spent in socially advanced areas, the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not truncate his growth and the natural talents of an individual gets full scope to blossom and flourish. Realising that these are problems of social adjustment it was observed that they must be so balanced in the mosaic of the country’s integrity that no section or community should cause detriment or discontentment to the other community. Therefore, said the Constitution Bench, the 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 to in order to become equals with others but those who go to other areas should ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. It was concluded by their Lordships as under: “We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule 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. 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 a 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.” 11. Admittedly, the petitioner was not a resident of Haryana. Therefore, although she was Ad-dharmi of Chandigarh and Ad-harmi caste was recognised as Scheduled Caste in the State of Haryana, but she was not entitled to avail the benefit of being Scheduled Caste of Chandigarh because the seat was meant for Scheduled Caste of Haryana. 12. There is no merit in the present writ petition and the same is dismissed.