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2023 DIGILAW 282 (UTT)

Satya Prakash Kureel v. State of Uttarakhand

2023-05-01

MANOJ KUMAR TIWARI

body2023
JUDGMENT : MANOJ KUMAR TIWARI, J. 1. According to petitioner, he is a permanent resident of District Raebareli in State of Uttar Pradesh, however, he obtained a Scheduled Caste certificate from Bhopal in State of Madhya Pradesh. Subsequently, on his application, he was issued a caste certificate by Tehsildar Kichha on 06.04.2005 declaring him to be a Scheduled Caste of State of Uttarakhand. The said caste certificate was cancelled by Tehsildar, Kichha on a complaint vide order dated 16.02.2018. Petitioner has challenged the cancellation order in this writ petition. 2. According to petitioner, he was born in Village Dallikhera, Post Tala (Gurbuxganj), District Raebareli in State of Uttar Pradesh, on 20.12.1970 and he studied upto VIIIth standard in District Raebareli and, thereafter, he migrated to Bhopal in State of Madhya Pradesh, where his father was employed with Madhya Pradesh State Electricity Board. From the documents brought on record, it is revealed that petitioner passed High School and Higher Secondary School Examination from Secondary Education Board Madhya Pradesh, Bhopal and he was awarded B.Com. and M.Com. degree by Barkatullah Vishwavidyalalya, Bhopal. The caste certificate issued to petitioner by Tehsildar Hujar District Bhopal on 09.08.1989 is on record as Annexure 9-A to the writ petition, which shows him to be permanent resident of Sudama Nagar Govindpura, Tehsil Hujar, District Bhopal. It is mentioned in the certificate that petitioner’s caste is included in the list of Scheduled Castes of District Bhopal and benefit of said certificate would be available to him only in respect of scholarships/employment given by State of Madhya Pradesh. 3. G.B. Pant University of Agriculture and Technology is a State University established under U.P. Krishi Evam Prodyogik Vishwavidyalalya Adhiniyam, 1958. In the year 1998, petitioner was appointed as Assistant Accountant in the said University against a post reserved for Scheduled Castes. State of Uttarakhand came into being w.e.f. 09.11.2000 in terms of provisions contained in U.P. State Reorganization Act, 2000 and, upon state reorganization, said University became State University of Uttarakhand. 4. In the year 2005, the said University issued an advertisement, inviting applications for appointment to various Teaching and Non-Teaching positions, including the post of Accounts Officer. State of Uttarakhand came into being w.e.f. 09.11.2000 in terms of provisions contained in U.P. State Reorganization Act, 2000 and, upon state reorganization, said University became State University of Uttarakhand. 4. In the year 2005, the said University issued an advertisement, inviting applications for appointment to various Teaching and Non-Teaching positions, including the post of Accounts Officer. In the said advertisement, it was mentioned that benefit of reservation will be given only to residents of Uttaranchal (now Uttarakhand) as per orders of State Government and Scheduled Caste, Scheduled Tribe and Other Backward Classes category candidates of other States shall be considered under un-reserved category. To meet the aforesaid requirement of the advertisement, petitioner applied for fresh caste certificate to Tehsildar, Kichha and a certificate was issued to him, on 06.04.2005, certifying that he is a Scheduled Caste of Uttarakhand. On the strength of the said certificate, petitioner was appointed as Accounts Officer in the University against a reserved post. However, the caste certificate issued to him on 06.04.2005 was cancelled on 16.02.2018, based on a complaint. 5. It is not in dispute that before cancelling the caste certificate, a notice was issued to petitioner on 12.12.2017, requiring him to produce evidence in support of his caste status, however, he could not produce any evidence. From the impugned cancellation order, it is revealed that personal hearing was also given to petitioner on 20.12.2017, but petitioner could not produce any material to support the caste certificate issued to him. His caste certificate was thus cancelled by holding that no one can have caste certificate from two different States for availing benefit of reservation in both states. 6. Learned counsel for the petitioner contends that petitioner was serving as Assistant Accountant in G.B. Pant University of Agriculture and Technology since before State reorganisation and his services were not transferable beyond district Udham Singh Nagar, therefore, he was rightly issued caste certificate by Tehsildar, Kichha, in terms of Government Order dated 27.05.2014. Copy of the said Government Order is enclosed as Annexure-6 to the rejoinder affidavit filed in reply to counter affidavit of respondent nos. 2 & 3. 7. Careful perusal of said Government Order reveals that it applies only to residents of erstwhile State of U.P., who were residing permanently in Successor State of Uttarakhand, from before its creation. Copy of the said Government Order is enclosed as Annexure-6 to the rejoinder affidavit filed in reply to counter affidavit of respondent nos. 2 & 3. 7. Careful perusal of said Government Order reveals that it applies only to residents of erstwhile State of U.P., who were residing permanently in Successor State of Uttarakhand, from before its creation. As per caste certificate issued to petitioner by Tehsildar, Hujur (Bhopal), he is permanent resident of State of Madhya Pradesh, therefore, reliance by petitioner on the said Government Order, is misplaced. There is nothing on record to show that petitioner belongs to Scheduled Castes of the State of Uttar Pradesh. 8. It was further contended on behalf of petitioner that Tehsildar Kiccha is not competent to cancel the caste certificate issued to petitioner. The said submission is also devoid of merit, as Tehsildar Kichha had issued the caste certificate to petitioner on 06.04.2005, therefore, he was well within his right to cancel the same. 9. Learned Senior Counsel for University has drawn attention of this Court to paragraph no. 35 of a judgment rendered by Hon’ble Supreme Court in the case of Arshad Jamil vs. State of Uttarakhand, (2011) 9 SCC 313 for contending that Tehsildar is the competent authority for cancelling caste certificate. Paragraph no. 35 of the said judgment is reproduced below: “35. The order which is passed by the Tahsildar whereby he had finally cancelled the caste certificate of the appellant and which is the impugned order under challenge in the writ petition, was a detailed order giving cogent reasons for the decision rendered. The said order cannot be termed as an order passed by him at anybody's behest or at the dictation of his superior officer. The aforesaid order was passed independently exercising his own independent mind and upon detailed examination of the records. Therefore, the submission that the same was passed at the dictation of the higher authority or that the same was passed for extraneous consideration is baseless and without any merit.” 10. Learned counsel for respondents submitted that there is no averment in the writ petition as to whether caste certificate issued to petitioner by the competent authority in State of Madhya Pradesh has been cancelled or withdrawn. Learned counsel for respondents submitted that there is no averment in the writ petition as to whether caste certificate issued to petitioner by the competent authority in State of Madhya Pradesh has been cancelled or withdrawn. They further submitted that it was not proper on the part of petitioner to apply for fresh caste certificate in State of Uttarakhand, when he was having such certificate from State of Madhya Pradesh. Thus, according to them, no one can enjoy status of Scheduled Caste in more than one State; therefore, the caste certificate issued to petitioner by the authorities of Uttarakhand State was rightly cancelled. 11. It is settled position in law that a person recognised as member of Scheduled Caste in one State is not entitled to benefit of reservation in some other State. In the case of Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and Others, (1990) 3 SCC 130 , Hon’ble Supreme Court considered the issue whether member of a Scheduled Caste in one State can claim benefit of reservation available to Scheduled Caste, in another State. Paragraph nos. 21, 22, 23 & 24 of the said judgment are reproduced 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. Ambedkar as 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 Scheduled 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 certainly be able to give some answer to the question in the form of some clause in his Constitution. 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 certainly 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 practicably 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. 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 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. 24. Having so held, now the question is, as to what is to happen to the petitioner in this case. As we have held, the petitioner is not entitled to be admitted to the Medical College on the basis that he belongs to Scheduled Tribe in his original State. The petitioner has, however, been admitted. He has progressed in his studies. But he had given an undertaking that he will not insist on the basis of the admission. If we allow him to continue with his studies in Maharashtra's college where he has been admitted on the undertaking given after he has not succeeded in this application, it would be a bad precedent. We must, however, do justice. The boy's educational prospects should not be jeopardised since he has progressed to a certain extent and disqualifying him at this stage or this year on the ground that he is not entitled to the protection of Scheduled Caste or Scheduled Tribe, would not confer any commensurate benefit to Scheduled Castes or Scheduled Tribes in Maharashtra or for that matter on anybody else. It is, therefore, desirable that the question whether he is genuinely belonging to Gouda community and whether this community is a Scheduled Caste or Scheduled Tribe, should be first properly and appropriately determined. As mentioned hereinbefore, we have not examined this question. After determining that whether after making provisions for the Scheduled Castes and Scheduled Tribes of Maharashtra, if any facility of admission or continuance of study can be given in the Medical College in Maharashtra to the petitioner herein, the authorities in charge of the institution should consider the same and if on that considering they find it justified in allowing the petitioner to continue in his studies, they may do so. The authorities should consider the same and take action accordingly, as expeditiously as possible. In considering the question of the petitioner continuing his medical educational, the appropriate authorities should bear in mind the justice of the situation. The authorities should consider the same and take action accordingly, as expeditiously as possible. In considering the question of the petitioner continuing his medical educational, the appropriate authorities should bear in mind the justice of the situation. We, therefore, leave it to the authorities to take appropriate action about the continuance or discontinuance of the petitioner in his studies on the basis of the aforesaid consideration. We order accordingly. We do so only in the background of the peculiar facts and circumstances of this case, and the aforesaid observations should not be treated as a precedent for other situations.” 12. In the case of U.P. Public Service Commission, Allahabad vs. Sanjay Kumar Singh, (2003) 7 SCC 657 , the question which fell for consideration before Hon’ble Supreme Court was whether a person belonging to Naga Tribe, whose forefather migrated from Nagaland to Allahabad in State of Uttar Pradesh, would be entitled to benefit of reservation available to Scheduled Tribes in State of Uttar Pradesh, based on a certificate issued by the competent authority in State of U.P. Allowing the appeal filed by U.P. Public Service Commission, Hon’ble Supreme Court held that such person cannot be treated as Scheduled Tribe candidate for claiming reservation available to Scheduled Tribes in State of U.P. Paragraph nos. 8 & 9 of the said judgment reproduced below: 8. The question arising in this case is no longer res integra. Almost the same question was considered in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra vs. Union of India, (1994) 5 SCC 244 . The following question arose for consideration: (SCC p. 246, Para 1) “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?” 9. The Constitution Bench answered that question in the negative. The Constitution Bench answered that question in the negative. Interpreting Articles 341 and 342, the Court observed: (SCC p. 247, Para 3) “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.” 13. A Constitution Bench of Hon’ble Supreme Court in the case of Bir Singh vs. Delhi Jal Board and Others, (2018) 10 SCC 312 has held that “a person belonging to Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purposes of employment or education. Paragraph nos. 33 & 34 of the said judgment is reproduced below: “33. The issue has to be viewed from another perspective. If a member of a Scheduled Caste/Scheduled Tribe of Andhra Pradesh who had migrated to Maharashtra is to be given the benefit of reservation it will amount to depriving a member of a Scheduled Caste/Scheduled Tribe of Maharashtra by reducing the reservation earmarked for them. It is in this context, in Marri Chandra Shekhar Rao vs. Seth G.S. Medical College, (1990) 3 SCC 130 , that the Constitution Bench observed as under: (SCC pp. 144, Para 14) “14.......But having regard to the purpose, it appears to us that harmonious construction enjoins that we should give to each expression - “in relation to that State” or “for the purposes of this Constitution” - its full meaning and give their full effect. This must be so construed that one must not negate the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution. Otherwise, one has to bear in mind that if reservations to those who are treated as Scheduled Caste or Tribe in Andhra Pradesh are also given to a boy or a girl who migrates and gets deducted (sic inducted) in the State of Maharashtra or other States where that caste or tribe is not treated as Scheduled Caste or Scheduled Tribe then either reservation will have the effect of depriving the percentage to the member of that caste or tribe in Maharashtra who would be entitled to protection or it would denude the other non-Scheduled Castes or non-Scheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution.” 34. Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions “in relation to that State or Union Territory” and “for the purpose of this Constitution” used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State “A.” 14. It is well settled by now that reservation available to Scheduled Castes and Scheduled Tribes is State specific. A person notified as a Scheduled Caste in State ‘A’ cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State “A.” 14. It is well settled by now that reservation available to Scheduled Castes and Scheduled Tribes is State specific. The Scheduled Castes are identified under Article 341 and Scheduled Tribes are identified under Article 342 of the Constitution, which provide that the President may after consultation with the Governor of a State, by public notification, specify the castes, races or tribes, which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. In the case of Bir Singh (Supra), Hon’ble Supreme Court in paragraph no. 36 has observed that ‘Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory’. 15. In the present case, petitioner has been declared to be a Scheduled Caste of State of Madhya Pradesh by a competent authority of that State. Thus, he cannot simultaneously be a member of a Scheduled Caste community of State of Uttarakhand. Since the caste certificate issued to petitioner by State of Madhya Pradesh is still holding the field, therefore, the declaration made by Tehsildar that petitioner is Scheduled Caste of State of Uttarakhand by issuing certificate dated 06.04.2005 was contrary to the constitutional scheme. Thus, this Court does not find any infirmity in the order of cancellation passed by Tehsildar, Kichha on 16.02.2018. Thus, there is no scope for interference. 16. Accordingly, the writ petition fails and is dismissed. There will be no order as to costs.