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2008 DIGILAW 1203 (BOM)

JESUDAS A. THAMBUSWAMY v. STATE OF MAHARASHTRA

2008-08-22

F.I.REBELLO, K.U.CHANDIWAL

body2008
JUDGMENT F. I. REBELLO, J. ;- Rule. Heard forthwith. 2. The petitioner, a citizen of India, is a resident of Andaman and Nicobar Islands, a Union Territory. The petitioner belongs to Nicobari, a notified Scheduled Tribe. The petitioner was admitted to the M.B.B.S. Course in Ambajogai Medical College Hospital, Maharashtra and has completed his graduation. On 24th April, 2007 he received his M.B.B.S. Degree. 3. It is the case of the petitioner that there is no post graduate medical course available in the Union Territory of Andaman and as such the petitioner was constrained to pursue his study outside his ordinary place of residence. Petitioner appeared for the P.G.M.-CAT examination and passed the same and category of S. T. in the order of merit stood at 57. The petitioner, however, was informed that he being a candidate not from Maharashtra State could not be considered for admission for Post Graduate Medical Course under seat reserved for ST category in the State of Maharashtra. 4. It is the submission of the petitioner that •the reservation in favour of Scheduled Tribe and Scheduled Caste is for the purpose of advancement of socially or educationally backward citizens to make them equal with other segments of community in educational or job facilities. Equality, it is submitted, is the dictate of the Constitution and Article 14 ensures equality in its fullness to all our citizens. To bring about real equality of opportunity between those who are unequals, certain reservations are necessary and these should be ensured. The State, therefore, must resort to compensatory State action for the purpose. of making people who are factually unequal in their wealth, education or social environment, equal in specified areas. It is submitted that if the involuntary migrants are treated equally with the other State migrants to any State, it would be equality amongst unequals, which is not permitted by the Constitution. The Andaman Nicobar islands are distantly situated and as such reservation should be available to the S.Ts. of Andaman and Nicobar considering the degree of disadvantage. 5. At the hearing of this petition learned Counsel has drawn our attention to the judgme!jlt of the Supreme Court in Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical College and ors., (1990) 3 SCC 130 and to the following observations in paragraph 23 :"23. of Andaman and Nicobar considering the degree of disadvantage. 5. At the hearing of this petition learned Counsel has drawn our attention to the judgme!jlt of the Supreme Court in Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical College and ors., (1990) 3 SCC 130 and to the following observations in paragraph 23 :"23. 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 Tribes in the State 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 Caste 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." Based on this, it is submitted that the State of Maharashtra should have provided for reservation for continuation of study or admission to persons like the petitioner. 6. Reply has been filed on behalf of respondent Nos. I and 4 by Dr. Vinod Dhanraj Mundada. It is the State's case that the petitioner was given admission to the M.B.B.S. course against the seat reserved for Government of India's nominees and not against the reserved seats for Scheduled Tribe category. 6. Reply has been filed on behalf of respondent Nos. I and 4 by Dr. Vinod Dhanraj Mundada. It is the State's case that the petitioner was given admission to the M.B.B.S. course against the seat reserved for Government of India's nominees and not against the reserved seats for Scheduled Tribe category. 50% of the total number of post graduate seats in Medical Colleges run by all the State Governments and Corporations, are treated as All India Quota and these seats are filled through entrance examination conducted at central level. There is reservation of seats for Scheduled Tribe category in seats from All India Quota. The contention of the petitioner that there is no reservation anywhere outside Andaman and Nicobar is not correct. Insofar as reservation for seats for the Scheduled Tribe category in post-graduate seats out of the State Quota in Maharashtra, the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vikmukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Class (Regulation of Issuance and Verification of Caste Certificate Act, 2000, hereinafter referred to as the said Regulations, and the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of Certificate Rules, 2003, hereinafter referred to as the said Rules, are followed. Considering, the provisions of Rule 5(1)(c) of the Rules of 2003 that the petitioner is (not entitled to have the benefit of reservation from the State of Maharashtra. The Rules, it is set out, do not make difference as to whether the migration of Scheduled Tribe candidate is voluntary or involuntary. The policy of the State in framing the Rules is that the right of the Scheduled Tribe candidates belonging to Maharashtra State should not be affected. 7. In the light of the above observations, can the relief as prayed for by the petitioner which are (1) to give him admission against the seats reserved for Scheduled Tribes in the State of Maharashtra and (2) to direct the respondent No. 3 (Union of India) to frame the Rules or Resolutions for Admission to involuntary migrants belonging to backward community from Union Territories to the States. 8. Insofar as the relief of framing the Rules by the respondent No. 3 is concerned, in our opinion that is an exercise in subordinate legislation. The Rules can be framed, if there be a power to frame Rules under a Statute. 8. Insofar as the relief of framing the Rules by the respondent No. 3 is concerned, in our opinion that is an exercise in subordinate legislation. The Rules can be framed, if there be a power to frame Rules under a Statute. Resolutions and administrative instructions can be issued pursuant to the executive power of the State which is co-extensive with the legislative power. That power cannot be exercised contrary to the provisions of Statute or to the Constitutional mandate including Articles 341 and 342. The relief, therefore, will have to be considered in the context, whether a migrant from a State or Union Territory involuntarily (there being no educational facilities for post graduate course in the respective State or Union of Territory) moves for education from the State or Union Territory where there exists no facility to a State or Union Territory where there exists facilities. 9. Insofar as a Union Territory is concerned, considering that the Union Territory is administered by an Administrator acting under the scope of authority under Article 239 of the Constitution it is the Central Government. The Government of India has in fact issued Circulars and made Government orders in the matter of eligibility for appointment to posts reserved for S.C./S.T. persons. In other words if there be no rules made under Article 309 or any other statutory enactment, it will be open to a person seeking admission or appointment in a Union Territory to be considered for admission and/or appointment irrespective of the State from which he comes as long as the Tribe or Caste is notified as Scheduled Caste or Tribe. The issue in respect of matter of appointment to the post in the Union Territory has been answered in the case of S. Pushpa and ors. vs. Sivachanmugavelu and ors., 2005 AIR SCW 977. 10. The question, however, is whether the S.Cs. or S.Ts. notified as Scheduled Caste or Tribe in another State or Union Territory can seek admission to a graduate or post graduate post in another State where it may be a notified S.T. or not a notified S.T. as like the petitioner on the ground of involuntary transfer. 11. To consider the contention we may first consider the judgment of the Supreme Court (Constitution Bench) in Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical College and ors., (1990) 3 SCC 130 . 11. To consider the contention we may first consider the judgment of the Supreme Court (Constitution Bench) in Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical College and ors., (1990) 3 SCC 130 . In that case the father of' the applicant was working in a public sector undertaking and was stationed in Mumbai. The petitioner came to live in Mumbai and completed his Secondary and Higher Secondary Education in Mumbai. The petitioner applied for admission to medical Colleges in the State quota against seat reserved for Scheduled Tribes. The question that came for consideration before the Supreme Court was whether a candidate recognised as a member of ST/SC in his original State on his migration to another State, would be entitled to get benefits of reservation of seats in the State where he had migrated. The Court held that for the purpose of construing the expression "for the purpose of this Constitution" and "in relation to that State" in Articles 341 and 34.2 that such a person who is recognised as a member of ST/SC in his original State would be entitled to all the benefits under the Constitution in that State alone and not in all parts of the country wherever he migrates. The Supreme Court specifically set out that expression "in relation to that State" would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It would also be inconsistent with the whole purpose of the scheme of reservation. The Court then observed that treating the Notification under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation of the very purpose and scheme and language of Article 341 read with Article 15(4). 12. Marri Chandra Shekhar Rao (supra) came up for consideration before the Supreme Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and anr. VS. Union of India and anr., (1994) 5 SCC 244 . 12. Marri Chandra Shekhar Rao (supra) came up for consideration before the Supreme Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and anr. VS. Union of India and anr., (1994) 5 SCC 244 . The question before the Supreme Court was as under: "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?". Having posed the question, the Court referred to Government Resolutions as to who would be eligible for being treated to be a member of Scheduled Caste or Tribe in relation to State of Maharashtra. The Government Resolution set out that the person should be a permanent resident of the State of Maharashtra before 10-8-1950 and 6-9-1950 respectively, the dates of the notifications of the respective Presidential Orders of 1950 scheduling the castes/tribes in a relation to the State of Maharashtra. Since there was no State of Maharashtra in 1950 the Court held that it would be reasonable to understand it to mean the geographical area now forming part of the State of Maharashtra. Discussing the issue the Court observed that the interpretation that the Court must put on the relevant constitutional provisions in regard to Scheduled Caste/Scheduled Tribes and other backward class must be aimed at achieving the objective of equality promised to all citizens by the Preamble of the 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. Before specifying the castes or tribes in the case of a State the President is obliged to consult the Governor of that State. 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. Before specifying the castes or tribes in the case of a State the President is obliged to consult the 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 a specification in relation to any other State whose Governor the President has not consulted. The Court noted that it is true that a person does not cease to belong to his caste/tribe by migration but he has a better and more socially free and liberal atmosphere and if sufficiently long time is 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. Then referring to the judgment in Marri Chandra Shekhar Rao (supra) the Court observed as under : "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." Then referring to the issue that a caste or tribe bearing the same nomenclature may be notified in two States. The Court observed as under : "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 purpose of this Constitution." 13. We may next consider the judgment of the Supreme Court in Sudhakar Vithal Kumbhare vs. State of Maharashtra and ors., 2004(4) MhLJ. (SC) 784 = (2004) 9 SCC 481 . We may next consider the judgment of the Supreme Court in Sudhakar Vithal Kumbhare vs. State of Maharashtra and ors., 2004(4) MhLJ. (SC) 784 = (2004) 9 SCC 481 . In that case that appellant was a resident of village Sawargaon, Post Pandhurna, District Sawargaon, Post Pandhuma, District Chhindwara in the State of Madhya Pradesh. As a result of State reorganisation a part of the said District being Chandrapur, which was originally in the State of Madhya Pradesh, had gone into the State of Maharashtra. Earlier in the Presidential Scheduled Tribes Order issued in the year 1950 the Tribe "Halba" was recognized as a Scheduled Tribe in the district" of Chhindwara in the State of Madhya Pradesh. After reorganization, when Chandrapur was included within the territory of the State of Maharashtra, the caste "Halba" was recognised as Scheduled Tribe also in the State of Maharashtra. The appellant was brought up and educated in the district of Chhindwara. Subsequently, he applied in response to an advertisement for selection and appointment in the Maharashtra State Electricity Board for the pest of Junior Engineer (Civil). He was selected and appointed. On 22nd August, 1988 he was issued a show cause notice as to why he should not be reverted from the post of Assistant Engineer as he is not entitled to the reservation for Scheduled Tribes in the State of Maharashtra. Despite explanation he was reverted. The question, the Court there posed was, whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in. Chhindwara region, a part of which, on States' reorganization, has come to the State of Maharashtra, was entitled to the benefit of reservation. The Court then said that the question that is required to be answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganisation Act. The question was not answered, but the Appeal was allowed with the direction to M.S.E.B. to refer the matter to the Scrutiny Committee to verify the eligibility of the appellant. 14. The question was not answered, but the Appeal was allowed with the direction to M.S.E.B. to refer the matter to the Scrutiny Committee to verify the eligibility of the appellant. 14. As we have noted earlier in Action Committee (supra) the Constitution Bench had noted the notification issued by the State of Maharashtra under which only those who are residing before the date of Presidential Notification were entitled to the benefit of reservation in the State of Maharashtra. The issue in our opinion of bifurcation of States, and whether persons belonging to one region would get benefit in the other State on account of re-organisation is answered by the judgment in Marri Chandra Shekhar Rao (supra) and Action Committee (supra). They would be entitled to reservation in the area where they were ordinarily residing on the date the area was included or excluded from the State or a new State created. 15. In State of Maharashtra and ors. vs. Kumari Tanuja, (1999) 2 SCC 462 the issue that the Court was considering was in respect of Nomadic Tribe. Therefore, they had no relation to reservation of SC/ST as provided under Articles 341 and 342 of the Constitution of India. 16. S. Pushpa and ors. (supra) the issue was whether the SC/ST of other States notified would be eligible for appointment to the post in the Union Territory. Considering the various notifications issued by the Government and considering the status of the Union Territory which is under the Central Government, the Supreme Court there held that in the absence of statutory provisions or Rules made under Article 309 to the contra, the SC and ST notified in other State and Union Territory would be eligible for consideration. 17. In Union of India and ors. vs. Dudh Nath Prasad, (2002) 2 SCC 20 the respondent had appeared for the UPSC Examination based on the certificate issued by the Sub Divisional Officer, Howrah. His parents had been residing in that State for over 30 years prior to the date on which the examination was held by the U.P.S.C. The respondent belonged to "Nuniya" caste which was declared as a Scheduled Caste in the State of West Bengal, but not in the State of Bihar. The respondent was appointed in 1968 against a post for a reserved category candidate. The respondent was appointed in 1968 against a post for a reserved category candidate. An objection was raised that as the respondent was born in the State of Bihar had and schooled there upto graduate level he could not be treated as a member of the Scheduled Caste community. The respondent approach CAT which recorded a finding that the respondent belonged to the Nuniya caste which is notified as a Scheduled Caste in the State of West Bengal. A finding was also recorded that the parents of the respondent were ordinary resident of Howrah from where the caste certificate was produced. Another fact on record was that the parents of the respondent before coming to West Bengal were living in a village in the State of Bihar where they owned some property. The respondent was born in that village on 3rd February, 1940. The issue was of submitting a certificate from the Sub Divisional Officer of the District where his parents ordinarily reside. It is in that context that the Supreme Court was called upon to decide the expression "ordinarily reside". Noting the expression "domicile" and the expression "residence" the Court noted that the etymologically "residence" and "domicile" carry the same meaning inasmuch as both refer to the "permanent home", but under private international, law, "domicile" carries a little different sense and exhibits many facets. The Court held that the concept of domicile as canvassed could not be imported while construing the issue before it. It then observed that word "domicile" and "residence" are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used. It is in this context that the Court held that notwithstanding that the parents of the respondent lived at one time in a village in District Siwan in the State of Bihar and that they owned some property there also, they had shifted to the State of West Bengal long ago and had been living there since then and for that purpose they shall be treated to be "ordinarily residing" in the State of West Bengal. The Court then observed that in the State of West Bengal the President had declared "Nuniya" caste as Scheduled Caste. The Court then observed that in the State of West Bengal the President had declared "Nuniya" caste as Scheduled Caste. The fact whether the parents were ordinarily residing in the State of West Bengal on the date of the Presidential Notification appears not to have been considered. 18. The law, therefore, as now settled by the Constitution Bench judgments is that to be eligible for benefits for reservation, a person must be ordinary resident in that State on the date of the Presidential Notification notifying the Scheduled Caste and Scheduled Tribe under Articles 341 and 342 respectively. Any other person who migrates to that State after that date and who incidentally would be a Scheduled Caste or Scheduled Tribe person having the same nomenclature of Scheduled Caste and Scheduled Tribe notified for the State would not be eligible for reservation in the State of Maharashtra, but would be entitled to reservation in the State of origin. 19. Considering the law as discussed it would be clear that merely because the petitioner obtained his M.B.B.S. degree from a. College in the State of Maharashtra, will not make him eligible for consideration for a seat reserved for Scheduled Tribes notified in the Presidential order for the State of Maharashtra. The reservation is for those who were ordinary resident in the State of Maharashtra before the date of the Presidential notification and as observed in Marri Chandra Shekhar Rao (supra) in the geographical area now forming part of the State of Maharashtra. The petitioner would not, therefore, be entitled to the relief as sought by him in terms of prayer (a) for admission to the post graduate post. 20. As the petitioner is not eligible the question of granting the relief in terms of prayer (b) cannot also be considered as under Articles 341 and 342 of the Constitution of India the reservation is meant in relation to that State. The petitioner's tribe not being notified in the State of Maharashtra and the petitioner not being resident in the State of Maharashtra would not be eligible. Apart from that, this Court cannot issue any direction to the Union of India to frame appropriate Rules or Resolutions for involuntary migrants as that would defeat the mandate of Articles 341 and 342. The petitioner's tribe not being notified in the State of Maharashtra and the petitioner not being resident in the State of Maharashtra would not be eligible. Apart from that, this Court cannot issue any direction to the Union of India to frame appropriate Rules or Resolutions for involuntary migrants as that would defeat the mandate of Articles 341 and 342. The fact, however, remains that there is a reservation provided in the States reservation under the category of All India Quota in which reservation is also provided for Scheduled Tribes. Their needs have been met whether on account of involuntary or voluntary transfer. 21. For the aforesaid reasons we find no merit in the petition. Rule discharged. No order as to costs. Petition dismissed.