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2017 DIGILAW 1279 (KER)

Rajkumar Meena v. Rankaswamy N.

2017-10-10

K.SURENDRA MOHAN, MARY JOSEPH

body2017
JUDGMENT : K. Surendra Mohan, J. 1. The third respondent in W.P.(C) No. 36354/2015 is in appeal challenging the judgment of the learned Single Judge dated 14/11/2016. The first respondent herein is the writ petitioner. He had filed the writ petition challenging Ext. P5 Rank list as well as Ext. P8 order by which the appellant herein was appointed as an Assistant Professor in Hindi. The learned Single Judge has allowed the writ petition, quashed the impugned proceedings and has directed the second respondent University to conduct a fresh selection. The dispute arose in the following facts and circumstances. As per Ext. P2 notification dated 24/04/2013, applications were invited from qualified members belonging to Scheduled Tribes for selection and appointment to the post of Assistant Professor in the Department of Hindi. The notification was later on re-issued on 06/02/2015. The appellant, respondents 1, 4, 5 and 6, had submitted applications in response to the said notification. An interview was conducted and Ext. P5 Rank list was published wherein the first respondent was rank No. 1, the fourth respondent rank No. 2, and the fifth respondent rank No. 3. On the basis of the ranking, the appellant was appointed as Assistant Professor, as per Ext. P8 order. The first respondent challenged the rank list as well as Ext. P8 order of appointment by filing W.P.(C) No. 36354/2015. Though the first respondent had also participated in the interview, he was not ranked as per Ext. P5. According to him, the candidates who were so ranked are persons hailing from other states and are not entitled to claim the benefit of the reservation that is meant to be extended only to persons belonging to the Scheduled Tribes of Kerala. In fact, the first respondent had submitted Ext. P7 representation on 16/10/2017 pointing out the infirmities in ranking persons from outside the State as per Ext. P5. However, there was no action. It was in the said circumstances that the writ petition was filed. 2. The case of the first respondent was that the reservation that is provided to members belonging to Scheduled Tribes were available only to those persons who belong to the Scheduled Tribes of the State of Kerala. Persons belonging to other States were not entitled to claim the said benefit on the basis of their status as members of a Scheduled Tribe of their parent State. 3. Persons belonging to other States were not entitled to claim the said benefit on the basis of their status as members of a Scheduled Tribe of their parent State. 3. The contentions of the first respondent were opposed by the appellant as well as the second respondent, University. The other respondents did not appear or contest the matter. A statement as well as a counter affidavit were filed on behalf of the University. The stand of the University was that, the selection was conducted by a duly constituted Selection Committee. It was on the basis of the selection process that Ext. P5 Rank list was finalised. Reliance was placed on Ext. R1(a) which showed the marks obtained by the respective candidates at the interview to contend that the appellant was the candidate who had scored the maximum marks in the selection process. The first respondent had performed badly at the interview, it was contended. 4. The learned Single Judge considered the respective contentions, found that the notification entitled only candidates belonging to the Scheduled Tribes of Kerala to participate in the selection process. Placing reliance on the decisions of the Apex Court on the point, the learned Single Judge found that the selection was bad and set aside the same allowing the writ petition. The University has been directed to carry out a fresh selection for filling up the vacancies. It is aggrieved by the said judgment, that the third respondent has filed this appeal. 5. According to Senior Counsel Sri. Bechu Kurian Thomas, Ext. P2 notification was issued in terms of the UGC regulations that stipulate appointment to the posts of "Assistant Professors", "Associate Processors" and "Professors" on the basis of merit alone. In order to attract the best candidates the notification was issued on national basis. Therefore, persons from other States were also entitled to apply. The appellant belongs to a Scheduled Tribe in Rajasthan. He was, therefore, entitled to the reservation stipulated by Article 16(4) of the Constitution. It is contended that, once a Tribe is identified for the purpose of conferring the special privilege of reservation and is notified by the President, it becomes a Scheduled Tribe entitled to the special benefits that are available to all other similar Scheduled Tribes. There cannot be any discrimination between the different Tribes that are notified as Scheduled Tribes by the Presidential Notification. There cannot be any discrimination between the different Tribes that are notified as Scheduled Tribes by the Presidential Notification. In view of the above, it is contended that persons belonging to Scheduled Tribes from other States would also be equally entitled to the benefit of the reservation that is contemplated by Article 16 of the Constitution. In order to provide a cosmopolitan atmosphere in universities and to make available to the students the best teaching talents in the country, it is necessary that a broad based view is adopted in the matter. Since Ext. P2 does not restrict applications only to persons belonging to Scheduled Tribes of the State of Kerala, no such restriction could be imported into it, it is contended. Reliance is placed on the decision in S. Pushpa and Others v. Sivachanmugavelu and Others 2005 KHC 614 : (2005) 3 SCC 1 : 2005 (2) KLT SN 13 : AIR 2005 SC 1038 to contend that, the Supreme Court has in the said case, directed that applications of persons domiciled in the Union Territory of Pondicherry also should be considered for appointment to the post notified in the said case. According to the learned Senior Counsel, therefore, the learned Single Judge seriously erred in interfering with the selection and appointment made by the University. For the above reasons, he seeks interference with the judgment of the learned Single Judge, in appeal. 6. Per contra, Adv. Shyam Krishnan, who appears for the first respondent points out that, the law that is applicable in the matter of implementing the privilege of reservation with respect to members belonging to Scheduled Caste and Scheduled Tribes is not as sought to be made out by the learned Senior Counsel. Reliance is placed on Constitutional Bench decisions to contend that, the benefits of reservation to members belonging to Scheduled Tribes is available only to persons belonging to that particular State. A person belonging to a Scheduled Tribe, domiciled in another State is not entitled to claim the benefit of reservation on the basis of his status as a member of a Scheduled Tribe in that State, it is contended. In the present case, according to the learned counsel, the appellant as well as the other persons who were ranked in Ext. P5 are persons who were not even residing in the State but persons who had responded to Ext. P2 notification, from outside. In the present case, according to the learned counsel, the appellant as well as the other persons who were ranked in Ext. P5 are persons who were not even residing in the State but persons who had responded to Ext. P2 notification, from outside. Therefore, it is contended that, the learned Single Judge was perfectly justified in setting aside the selection and directing a fresh selection to be conducted. According to the learned Counsel, the University ought not have even accepted the applications of the appellant or respondents 4 and 5. Therefore, he seeks dismissal of the appeal. Sri. K.K. Raveendranath, the Additional Advocate General supports the contentions of the Counsel for the first respondent and seeks to justify the judgment appealed against. On behalf of the second respondent University, Adv. S.P. Aravindakshan Pillai informs us that, though the University had initially preferred an appeal against the judgment of the learned Single Judge, the same was withdrawn following a decision taken by the Syndicate to abide by the verdict of the learned Single Judge. 7. In reply, the learned Senior Counsel Sri. Bechu Kurian Thomas places reliance on the regulations of the University Grants Commission (UGC) and contends that, the UGC regulations override and bind all the Universities within the State. It is also contended that, the Constitutional Bench decisions on which reliance was placed by the first respondent has been doubted by a Bench of the Supreme Court and the question has been referred to a Larger Bench in Ranjana Kumari v. State of Uttaranchal and Others 2013 KHC 4772 : (2013) 14 SCC 710. According to the learned Senior Counsel therefore, the position of law is still unsettled. 8. Heard. The facts in this case are not in dispute. It is not in dispute that, the appellant as well as the other persons who were ranked as per Ext. P5 are persons belonging to other States. They are not persons who have been domiciled in Kerala. They have only responded and submitted applications pursuant to Ext. P2 notification. They claim to be persons belonging to different Scheduled Tribes of their respective States. They claim that they are entitled to the benefits of reservation extended to members of Scheduled Tribes by the State by virtue of their status as members of Scheduled Tribes of their States. They have only responded and submitted applications pursuant to Ext. P2 notification. They claim to be persons belonging to different Scheduled Tribes of their respective States. They claim that they are entitled to the benefits of reservation extended to members of Scheduled Tribes by the State by virtue of their status as members of Scheduled Tribes of their States. Therefore the question that arises for determination is whether persons belonging to other States could claim the benefit of reservation that is available to members of the Scheduled Tribes of Kerala. 9. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Others 1990 KHC 526 : (1990) 3 SCC 130 : 1990 (2) KLT SN 15 : JT 1990 (2) SC 285 a Constitution Bench of the Supreme Court had to consider a similar person. The petitioner in the said case was born in the State of Andhra Pradesh. He belonged to the Gouda community, which was recognised as a Scheduled Tribe in the Constitution (Scheduled Tribes) Order 1950. It was contended that he was entitled to admission to the Medical College, on the basis of his status as the member of a Scheduled Tribe. The Supreme Court considered the contentions, placed reliance on the reply given by Dr. B.R. Ambedkar, to a question by Mr. Jai Pal Singh in the Constituent Assembly and held that the petitioner before the Court was not entitled to be admitted to the Medical College on the basis that he belongs to a Scheduled Tribe in the State of his origin. Paragraphs 21 and 22 of the said judgment, being relevant in the above context are extracted below. "21. We have reached the aforesaid conclusion on the interpretation of the relevant provisions, in this connection, it may not be inappropriate to refer to the views of Dr. B.R. Ambedkaras to the prospects of the problem that might arise, who stated in the Constituent Assembly Debates in reply to the question which was raised by Mr. Jai Pal Singh which are to the following effect: "He asked me another question and it was this. B.R. Ambedkaras to the prospects of the problem that might arise, who stated in the Constituent Assembly Debates in reply to the question which was raised by Mr. Jai Pal Singh which are to the following effect: "He asked me another question and it was this. Supposing a member of a Schedule Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing, the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainty be able to give some answer to the question in the form of some clause in his Constitution. But, so far as the present Constitution stands, a member of a Scheduled Tribe going outside the Scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practically impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them...." 22. In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admitted as being domicile does not fall for consideration." The question was again considered by the Apex Court in Action Committee v. Union of India 1995 KHC 197 : (1994) 5 SCC 244 : 1995 (1) KLT SN 47. The petitioner before the Supreme Court was the Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra. They were aggrieved by the action of the State of Maharashtra in not extending the benefits of reservation to members of Scheduled Tribes belonging to other States. The petitioner before the Supreme Court was the Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra. They were aggrieved by the action of the State of Maharashtra in not extending the benefits of reservation to members of Scheduled Tribes belonging to other States. The Bench considered the question, quoted the earlier decision in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Others (supra), with approval and negatived the contentions of the petitioner. Reference was also made to the notification issued by the Government of India and the clarification that followed it and held as follows: "8.-----------It will thus, be seen that so far as the Government of India is concerned, since the date of issuance of the communication dated 22/03/1977, it has firmly held the view that a Scheduled Caste/Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he cannot claim benefit as such in the latter State." In Pushpa Devi v. P.S.C. 1996 KHC 15 : 1996 (1) KLT 56 : 1996 (1) KLJ 97 : ILR 1996 (2) Ker. 183, a learned Single Judge of this Court has also taken the same view. In a later decision of the Apex Court Sanjay Kumar Singh v. State of U.P. (sic: U.P. Public Service Commission, Allahabad v. Sanjay Kumar Singh) 2003 KHC 1563 : (2003) 7 SCC 657 : AIR 2003 SC 3626 : JT 2003 (8) SC 79 a person claimed that his forefathers were residents of Kohima in the District of Nagaland but had migrated to Uttar Pradesh and settled in Allahabad. He claimed reservation as "Naga" which was recognised as a Scheduled Tribe by the Scheduled Tribes Order of 1970. Referring to all the previous decisions, the Supreme Court negatived the said contentions. 10. The resultant position therefore is that, a person cannot, by virtue of his status as the member of a Scheduled Tribe in another State claim the benefit of reservation in the State to which he would have migrated. In the present case, the appellant is not a person who has migrated to the State of Kerala. 10. The resultant position therefore is that, a person cannot, by virtue of his status as the member of a Scheduled Tribe in another State claim the benefit of reservation in the State to which he would have migrated. In the present case, the appellant is not a person who has migrated to the State of Kerala. He is a person who claims to belong to a Scheduled Tribe of Rajasthan. He has only responded to Ext. P2 notification. Since even in the case of persons who have taken up residence in another State no reservation could be extended on the basis of his status as the member of a Scheduled Tribe of his State, a person who applies afresh from another State cannot be granted the benefit of such reservation. In the present case, Ext. P2 notification is confined only to members of Scheduled Tribes. Only one post was notified. Therefore, only members belonging to Scheduled Tribes in Kerala were entitled to be considered. The University has conducted the selection in violation of the law. Therefore the selection has been rightly interfered with and set aside by the learned Single Judge. We have gone through the judgment of the learned Single Judge. We do not find any infirmity therein warranting an interference with the judgment in appeal. The learned Single Judge has set aside the selection of the candidate and has directed the University to conduct a fresh selection. The learned Senior Counsel has contended that, regarding the overriding the effect of the UCC regulations, the Apex Court decision in Kalyani v. K.V. Jeyaraj and Others 2015 KHC 4184 : (2015) 6 SCC 363 : AIR 2015 SC 1875 is clear. It is also contended that, since the dicta laid down by the Constitutional Bench decisions have been doubted and the matter referred to a Larger Bench, it is necessary to await the decision of the Larger Bench. A further appeal is made pointing out that the appellant pursuant to his appointment has been working for the past two years as Assistant Professor, without giving cause for complaint from any quarter. We do not find any substance in the said contention. If the appellant is permitted to continue on the basis of the appointment that has been made by the University which has been found by us to be illegal, that would amount to perpetuating an illegal act. We do not find any substance in the said contention. If the appellant is permitted to continue on the basis of the appointment that has been made by the University which has been found by us to be illegal, that would amount to perpetuating an illegal act. The Apex Court has made it clear on a number of occasions that, the fact that a decision has been doubted by another Bench and referred to a Larger Bench is not a reason to keep any matter pending awaiting such decision. A case would have to be decided on the basis of the law, as it stands at the point of time when the decision is rendered. The law on the point, as already noticed by us is governed by the dicta authoritatively laid down by the decisions of the Constitutional Bench already referred to above. A further contention is put forward that, the discretion under Article 226 would not be exercised to correct some minor infraction of law where it would not be just to do so. Reliance is placed on a Division Bench decision of this Court in Rameshan v. Jayavally 2007 KHC 3486 : 2007 (2) KLT 325. We are not satisfied that the said decision has any application to the facts of the present case. The learned Single Judge has already exercised his discretion and set aside the impugned proceedings. We do not find any grounds to interfere with the said judgment, in appeal. For the foregoing reasons, the appeal fails and is accordingly dismissed.