Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Scheduled Tribes; Article 342;.. The Appellant Is Not Entitled To The Grant Of Status As A Scheduled Tribe Candidate In The State Of Uttar Pradesh..
JUDGEMENT TITLE : Surendra Kumar Kanwat Vs. Union Of India Thru. Sec. And 5 Others On 10/26/2015 By Allahabad High Court
CASE NO : SPECIAL APPEAL NO. 689 OF 2015
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- SPECIAL APPEAL No. - 689 Of 2015

Appellant :- Surendra Kumar Kanwat
Respondent :- Union Of India Thru. Sec. And 5 Others
Counsel For Appellant :- Mohammad Hisham Qadeer
Counsel For Respondent :- C.S.C.,A.S.G.I.2015/2097

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

(Per : Dr D Y Chandrachud, CJ)

The Special Appeal Is From A Judgment Of The Learned Single Judge Dated 7 September 2015. The Appellant Was Admitted In 2006-07 To The MBBS Degree Course At Safai Medical College On A Seat Reserved For The Scheduled Tribes. The Appellant Claims To Belong To The Scheduled Tribe Of Meena. Admittedly, The Aforesaid Tribe Has Been Designated As A Scheduled Tribe In Relation To The State Of Rajasthan But Not In The State Of Uttar Pradesh. The Father Of The Appellant Was Employed In The Railways And Was At The Material Time Posted At Najibabad In The District Of Bijnor In Uttar Pradesh. Thereafter, The Appellant's Father Was Transferred To New Delhi As Part Of The Exigencies Of Service And Eventually Retired From Service. The Appellant Completed His MBBS Degree Course In 2012-13 (on A Reserved Seat) And Applied For The U.P. Post Graduate Medical Education Examination1 On A Seat Reserved For Scheduled Tribes. The Appellant Was Required To File His Certificate In A Proforma. On The Ground That The Appellant Did Not Furnish His Certificate In The Prescribed Proforma After Due Attestation From The Local Authorities, He Was Declined Admission By The Counseling Board At The Stage Of Counseling. In The Order Which Was Passed By The Counseling Board, It Was Stated That In The Certificate Which Was Furnished By The Appellant, His Place Of Residence In The State Of Uttar Pradesh Was Not Mentioned. Moreover, The Appellant Had Produced A Copy Of The Certificate Issued By The Collector Of Alwar In Rajasthan Which Was Not Acceptable To The Counseling Board. Aggrieved By The Decision Of The Counseling Board, The Appellant Filed A Writ Petition Under Article 226 Of The Constitution Seeking To Challenge The Decision Of The Counseling Board And For A Mandamus For The Allotment Of A Seat In Order To Enable Him To Pursue His Post Graduate Medical Education In The State Of Uttar Pradesh.
The Learned Single Judge Dismissed The Writ Petition On The Ground That In Order To Seek The Benefit Of A Reserved Seat, The Appellant Was Required To Fulfill All The Requirements; That Although The Appellant Was Asked To File A Certificate In The Prescribed Proforma After Due Attestation, He Had Failed To Do So; And That The Appellant Had Failed To Establish That He Had Migrated To The State Of Uttar Pradesh. In The Circumstances, The Learned Single Judge Held That The Appellant Would Not Be Entitled To The Benefit Of A Seat Reserved For The Scheduled Tribes For Admission To Medical Colleges In The State Of Uttar Pradesh.
When The Special Appeal Came Up Before This Court, The Basic Issue Which Was To Be Addressed Was How The Appellant Who Claims To Belong To A Scheduled Tribe In Rajasthan Can Claim The Benefit Of A Seat Reserved For The Scheduled Tribes In The State Of Uttar Pradesh. Since This Aspect Was Not Adverted To In The Order Passed By The Learned Single Judge, A Request Was Made Before This Court By Counsel For The Appellant In The Special Appeal For An Adjournment To Enable The Appellant To File A Supplementary Affidavit. We Deemed It Appropriate And Proper To Allow This Request. In Pursuance Of The Opportunity Which Was Granted By The Court, The Appellant Has Filed A Supplementary Affidavit Dated 15 October 2015.
Basically, The Case Of The Appellant Is That In Exercise Of Its Discretionary Power, The State Has Granted The Benefit Of Reservation To Persons Who Have Migrated From Other States To The State Of Uttar Pradesh As Scheduled Castes And Scheduled Tribes For The Purpose Of Education And Employment Even Though The Community In Question Is Not Included In The Presidential Order Designating Scheduled Castes And Scheduled Tribes In Relation To The State Of Uttar Pradesh. The Appellant Has Relied Upon Five Instances Of Teachers Who Have Been Selected As L.T. Grade Teachers In The State Of Uttar Pradesh On The Basis Of Scheduled Tribe Certificates Granted To Them As Belonging To The Meena Community In The State Of Rajasthan. This Is The Submission Which Falls For Consideration.
Article 342 Of The Constitution Provides As Follows:
"342. Scheduled Tribes.--(1) The President May With Respect To Any State Or Union Territory, And Where It Is A State, After Consultation With The Governor Thereof, By Public Notification, Specify The Tribes Or Tribal Communities Or Parts Of Or Groups Within Tribes Or Tribal Communities Which Shall For The Purposes Of This Constitution Be Deemed To Be Scheduled Tribes In Relation To That State Or Union Territory, As The Case May Be.
(2) Parliament May By Law Include In Or Exclude From The List Of Scheduled Tribes Specified In A Notification Issued Under Clause (1) Any Tribe Or Tribal Community Or Part Of Or Group Within Any Tribe Or Tribal Community, But Save As Aforesaid A Notification Issued Under The Said Clause Shall Not Be Varied By Any Subsequent Notification."

Clause (1) Of Article 342 Empowers The President To Specify Tribes Or Tribal Communities Or Part Of Or Groups Within Tribes Or Tribal Communities Which Shall For The Purposes Of The Constitution "be Deemed To Be Scheduled Tribes In Relation To That State." Under Clause (2), Parliament Is Vested With The Jurisdiction To Include Or Exclude From The List Of Scheduled Tribes Specified In The Presidential Notification Issued Under Clause (1). Consequently, It Is Clear From Clause (1) Of The Article 342 That The Specification Of Tribes Or Tribal Communities Or Parts Of Or Groups Amongst Them, As Scheduled Tribes Is In Relation To A Particular State. That Is The Plain Meaning And Intendment Of The Expression "in Relation To That State".
The Issue Which Arises Before The Court Is Not Res Integra.
The First Decision Of The Constitution Bench Of The Supreme Court Was In Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College And Ors.2. In The Judgment Of The Constitution Bench, The Position Of Law Was Set Out In The Following Terms:
"...But When A Scheduled Caste Or Tribe Migrates, There Is No Inhibition In Migrating But When He Migrates, He Does Not And Cannot Carry Any Special Rights Or Privileges Attributed To Him Or Granted To Him In The Original State Specified For That State Or Area Or Part Thereof. If That Right Is Not Given In The Migrated State It Does Not Interfere With His Constitutional Right Of Equality Or Of Migration Or Of Carrying On His Trade, Business Or Profession...The 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 Will Also Be Inconsistent With The Whole Purpose Of The Scheme Of Reservation. In Andhra Pradesh, A Scheduled Caste Or A Scheduled Tribe May Require Protection Because A Boy Or A Child Who Grows In That Area Is Inhibited Or Is At Disadvantage. In Maharashtra That Caste Or That Tribe May Not Be So Inhibited But Other Castes Or Tribes Might Be. If A Boy Or A Child Goes To That Atmosphere Of Maharashtra As A Young Boy Or A Child And Goes In A Completely Different Atmosphere Or Maharashtra Where This Inhibition Or This Disadvantage Is Not There, Then He Cannot Be Said To Have That Reservation Which Will Denude The Children Or The People Of Maharashtra Belonging To Any Segment Of That State Who May Still Require That Protection...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 Get 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."

The Supreme Court Held That When A Member Of A Scheduled Caste Or Scheduled Tribe Migrates, "there Is No Inhibition In Migrating" But When Such A Person Migrates He Or She Does Not Carry Any Special Rights Or Privileges Attributed Or Granted To Him Or Her In The Original State Specified.
This Decision Was Subsequently Reiterated In A Subsequent Judgment Of The Constitution Bench 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 Anr3. The Supreme Court Observed As Follows:
"On A Plain Reading Of Clause (1) Of Articles 341 And 342 It Is A Manifest That The Power Of The President Is Limited To Specifying The Castes Or Tribes Which Shall, For The Purposes Of The Constitution, Be Deemed To Be Scheduled Castes Or Scheduled Tribes In Relation To A State Or A Union Territory, As The Case May Be. Once A Notification Is Issued Under Clause (1) Of Articles 341 And 342 Of The Constitution, Parliament Can By Law Include In Or Exclude From The List Of Scheduled Castes Or Scheduled Tribes, Specified In The Notification, Any Caste Or Tribe But Save For That Limited Purpose The Notification Issued Under Clause (1), Shall Not Be Varied By Any Subsequent Notification. 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..."

Having Due Regard To The Well Settled Position In Law, There Can Be No Manner Of Doubt That The Appellant Who Claims To Belong To A Scheduled Tribe (Meena) In The State Of Rajasthan Cannot Claim The Status Of A Person Belonging To Scheduled Tribe In The State Of Uttar Pradesh.
However, Reliance Has Been Placed On Behalf Of The Appellant On A Subsequent Judgment Of A Bench Of Three Learned Judges Of The Supreme Court In S. Pushpa And Ors Vs. Sivachanmugavelu And Ors4. In The Decision In S. Pushpa, The Supreme Court Observed, On The Basis Of The Material Which Was Produced Before The Court, That The Government Of Pondicherry Which Is A Union Territory Had All Along Proceeded On The Basis That All Orders Regarding Reservation For SC/ST Candidates In Respect Of Posts Or Services Under The Central Government Would Be Applicable To Posts Or Services Under The Pondicherry Administration As Well. The Supreme Court Noted That Right From The Inception, A Policy Was Followed By The Pondicherry Administration Whereunder Migrant SC/ST Candidates Were Held To Be Eligible For Reserved Posts In The Administration Of The Union Territory Of Pondicherry. The Supreme Court Held That There Is Nothing Inherently Wrong Nor Is There Any Infraction Of Any Constitutional Provision In Such A Policy. Moreover, It Was Held That Article 16(4) Is Not Controlled By A Presidential Order Issued Under Article 341 (1) Or Article 342 (1) Of The Constitution. The Union Territory Of Pondicherry Having Adopted A Policy Of The Central Government Whereunder All Scheduled Castes And Scheduled Tribes Irrespective Of Their State Of Origin Were Eligible For Posts Reserved For SC/ST Candidates, The Supreme Court Observed That There Was No Legal Infirmity In Such A Policy.
The Correctness Of The Decision In S. Pushpa Has Subsequently Been Referred For Consideration Before A Larger Bench In State Of Uttaranchal Vs. Sandeep Kumar Singh And Ors5.
For The Purposes Of The Present Proceedings, It Must Be Clarified That The Issue Which Weighed With The Hon'ble Supreme Court In The Decision In S. Pushpa Would Not Arise In Relation To The State Of Uttar Pradesh. The Decision In S. Pushpa Was Primarily Founded On The Position That The Administration Of The Union Territory, Namely Pondicherry Had Consistently Adopted Reservation As Applicable To The Central Services In Relation To Reservation For SC/ST Candidates In Matters Of Appointment To Posts Within The Pondicherry Administration And There Was Nothing Inherently Incorrect About Such A Policy. The Words "in Relation To That State" In Article 342 (1) Have Been Construed In The Two Constitution Bench Judgments In Marri Chandra Shekhar Rao And In Action Committee On Issue Of Caste Certificate To Scheduled Castes And Scheduled Tribes In The State Of Maharashtra As We Have Noted Above. A Person Who Belongs To A Scheduled Tribe In The State Of Rajasthan Cannot Claim The Benefit Of Belonging To A Scheduled Tribe In The State Of Uttar Pradesh On The Ground That He Or She Has Migrated From The State Of Origin. The Migration Does Not Affect His Or Her Scheduled Tribe Status In The State Of Origin But It Does Not Bring To The State Of Uttar Pradesh The Benefits Which Are Available To Scheduled Tribes Exclusively In The State Of Origin.
The Learned Counsel Appearing On Behalf Of The Appellant Has Sought To Place Reliance On A Circular Issued By The Ministry Of Home Affairs Of The Union Government On 18/25 November 1982. The Earlier Circular Was However Clarified By A Subsequent Circular Dated 6 August 1984 In Which It Was Clarified That A Scheduled Caste/Scheduled Tribe Candidate On Migration From The State Of Origin To Another State Will Not Lose The Status As A Member Of The Scheduled Caste/Scheduled Tribe But He Will Be Entitled To The Concessions/benefits Admissible To Scheduled Castes/Scheduled Tribes From The State Of His Origin And Not From The State Where He Has Migrated. The State Of Uttar Pradesh Had By A Circular Dated 24 February 1994 Followed The Earlier Circular Of The Union Government Dated 18/25 November 1982 And Has Reiterated The Same Circular On 16 October 1999. These Administrative Guidelines Of The State Would Be Subservient To The Binding Position In Law As Declared By The Supreme Court In Both The Judgments Of The Constitution Benches Noted Above.
The Fact That Benefits Had In The Past Been Granted To Some Teachers In Certain Circumstances Cannot Deviate From The Constitutional Position To Which A Reference Has Been Made By Us Above.
For These Reasons Which We Have Indicated Above, We Are Of The View That The Appellant Is Not Entitled To The Grant Of Status As A Scheduled Tribe Candidate In The State Of Uttar Pradesh On The Basis That He Belongs To The Meena Tribe Which Is Designated As A Scheduled Tribe In The State Of His Origin, Namely In The State Of Rajasthan.
The Special Appeal Is, Accordingly, Dismissed. There Shall Be No Order As To Costs.

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