JUDGMENT F.I. Rebello, J.
1. Rule. Heard forthwith.
2. It is the case of the petitioner that she is domiciled in the State of Maharashtra. The petitioner was born on 14th August, 1968 at Chakradharpur in the State of Bihar and was educated at Tahsil Harda, Distt. Hoshangabad in the State of Madhya Pradesh. On 17-6-1990, she got married to Mr. Rajendra Tank domiciled in the State of Maharashtra. The petitioner belongs to "Gujar-Khadiya (Gurjar)" caste, which is recognized as Other Backward Class in the State of Madhya Pradesh as well as in the State of Maharashtra and is included at Serial No. 28 in the list of recognized Backward Classes published in the State of Madhya Pradesh in the Official Gazette on 8-2-1985. By the resolution dated 13th October, 1967 read with resolution dated 1st January, 2001, the State of Maharashtra has also included caste "Gujar" in the list of recognized Other Backward Class categories as per the pleadings. The petitioner contested the elections to Nagpur Municipal Corporation held on 11-2-2002 against a seat reserved for the Other Backward Category. She was sponsored for this election as a candidate by the Indian National Congress. The petitioner was declared elected.
3. On 18-10-2001, the Maharashtra Scheduled Caste, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Class and Special Backward Categories (Regulation of Issuance of Verification of) Caste Certificate Act, 2000 (Mah. Act XXIII of 2001) came into force. Pursuant to the Act coming into force, any person belonging to any of the Backward Class categories, if desirous of contesting for an elected post to any local authority, is required to apply to the competent Authority for getting a Caste Validity Certificate. On the matter being referred to the Committee, the Municipal Commissioner, Nagpur Municipal Corporation, Nagpur was informed; by communication dated 7-2-2005 that the caste claim of the petitioner cannot be verified as the petitioner is not permanent resident of the State of Maharashtra. Writ Petition No. 559 of 2005 was filed by one Subhash s/o Govindrao Aparajit, one of the Corporators of the Nagpur Municipal Corporation seeking a relief of restraining the present petitioner from participating in any of the proceedings of the Nagpur Municipal Corporation including that of Mayor and Deputy Mayor which were scheduled to be held on 20th February, 2005 on the ground that the petitioner was not entitled to contest election from the seat reserved for Other Backward Class category as she was not an ordinary resident of the State of Maharashtra. That petition came to be disposed of by issuing directions by an order dated 18th February, 2005. The learned Bench of this Court directed the respondent Nos. 2 to 4 in that petition to examine the caste claim of the petitioner within a period of three months irrespective of technical objections, like their place of original residence. The Court also observed that till the decision of the Caste Scrutiny Committee, the respondents would continue to hold the posts of Councilor and cannot be prevented from participating in the proceedings of the house or casting vote in any elections.
Subsequent to the judgment, the petitioner was called upon by the said Committee for hearing. The petitioner furnished her explanation in writing on 16-3-2005. The Committee by the impugned order dated 17-5-2005 invalidated the caste claim of the petitioner on the ground that : (i) the father of the petitioner was the original resident of the area outside the State of Maharashtra; (ii) the petitioner has obtained the caste certificate from the Office of the Collector, Nagpur on the basis of her marriage with Mr. Rajendra Tank of Nagpur in the State of Maharashtra who belongs to a Gujar Caste and (iii) the petitioner is the original resident of the area outside the State of Maharashtra prior to 1967 and, therefore, she is not entitled to the benefits of Other Backward Class category in the State of Maharashtra in view of the Government Resolution dated 24-8-1995. The petitioner apprehends that on the basis of the order dated 17-5-2005 the Commissioner, Nagpur Municipal Corporation, Nagpur may take action under Section 10(4) of the said Act read with Section 21 of the City of Nagpur Corporation Act, 1948 to disqualify the petitioner from the post of Corporator. Hence the challenge.
4. On behalf of the petitioner, following questions are raised :
A) Whether the petitioner who belongs to Gujar (Gurjar) caste recognized as Other Backward Class in the list of State of Madhya Pradesh is entitled to the benefits of 'Gujar-Kadiya' caste a recognized Other Backward Class category in the list of Other Backward Class published by the State of Maharashtra?
B) Whether the Committee was right in rejecting the caste claim of the petitioner solely on the ground that the petitioner was not resident of the State of Maharashtra prior to 1999, particularly when there is no such prohibition contemplated either under the law or under any Government Circular or order.
The submission on behalf of the petitioners is that considering the judgments of the Apex Court most specifically in the State of Maharashtra and Ors. v. Kumari Tanuja as also the judgment in Sudhakar Vithal Kumbhare v. State of Maharashtra and Ors., if the caste of the petitioner is common to both the States, then the petitioner would be entitled to the benefits of reservation even in the State of migration. Reliance was also placed for that proposition on the judgment in S. Pushpa and Ors. v. Sivachanmugavelu and Ors., , as also some other judgments which will be adverted to during the course of discussion.
On the other hand, on behalf of the respondents, it is contended that, considering the law laid down by the Apex Court, the caste of the petitioner will be the caste of her birth and she will be entitled to the benefits in the State of. her birth or of her parents, but she would not be entitled to the benefits conferred in the State where she has migrated. In these circumstances, it is set out that the Caste Scrutiny Committee rightly invalidated the right of the petitioner to claim benefits in the State of Maharashtra and contest the elections on a seat reserved for the Other Backward Community in the State of Maharashtra.
5. The question, therefore, for consideration before this Court is as to whether the petitioner, who was born in the State of Bihar on 14th August, 1968, who was educated in the district Hoshangabad in the State of Madhya Pradesh and who was married to Mr. Rajendra Tank domiciled in the State of Maharashtra on 17-6-1990, was entitled to contest a seat reserved for the Other Backward Class for the elections held to the Nagpur Municipal Corporation Gujar (Gurjar) is a recognized Other Backward Class in the State of Madhya Pradesh. In the State of Maharashtra, the petitioner has averred that, Gujar-Kadiya is also included in the list of recognized Other Backward Class categories published by the State of Maharashtra.
We may firstly now refer to the judgment in Marri Chandra Shekhar Rao v. Dean, Seth G.S., Medical College and Ors., . The petitioner therein, admittedly, was belonging to the Scheduled Tribe "Gondi" which was a notified Scheduled Tribe in the State of Andhra Pradesh. She was born in Tenali, Father of the petitioner, based on the Scheduled Tribe certificate, got employment in the S. T. quota in a Government of India undertaking and was placed in Mumbai in the State of Maharashtra. The petitioner came to live in Mumbai since the age of nine years. After passing the 12th Std. examination of the Maharashtra State Board of Secondary and High Secondary Education, she applied for admission to the Medical College against a seat reserved for Scheduled Tribes. Admission was denied and a S. T. candidate who had secured lesser marks than the petitioner had been admitted. That was based on circular of the Government of India setting out that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated. The question that the Apex Court was called upon to answer was as under :
"Whether one who is recognized as a Scheduled Tribe in the State of his origin and birth continues to have the benefits or privileges or rights in the State of migration or where he later goes?
For that purpose, the Apex Court had to consider the provisions of Articles 341 and 342 of the Constitution of India and had to consider and determine what the expression "in relation to that State" in conjunction with 'for the purposes of this Constitution' seeks to convey. Certain observations of the Apex Court may now be noted. Firstly "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 of 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. Neither Articles 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates."
The Apex Court then further observed as under:
"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."
The Apex Court held that the petitioner in that case, as she had migrated to the State of Maharashtra where caste "Gondi" was not Scheduled Tribe, was not entitled to be admitted to the Medical College on the basis of Scheduled Tribe certificate in Maharashtra.
6. The next judgment which will be considered is in the case of Action Committee on issue of caste certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India and Anr., . The issue before the Apex Court was :
"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 the 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 Caste and/or Scheduled Tribes in State B?"
This was the question raised and which the Apex Court was called upon to answer. While deciding the issue, the Apex Court noted various communications issued which require that in order to become eligible for being treated to be a member of Scheduled Caste/Tribe in relation to the State of Maharashtra, a person should be a permanent resident of the State of Maharashtra before 10th August, 1950 and 6th September, 1950 respectively. As there was no State of Maharashtra in 1950, it will be reasonable to understand it to mean the geographical area now forming part of the State of Maharashtra. The expression "ordinary resident" has been set out therein and is also defined. There were some modifications by which the prescribed Authority in a State was permitted to issue Scheduled Caste/Scheduled Tribe certificate to a person who had migrated from the State on production of genuine certificate issued to his father by prescribed Authority of the State of father's origin. After discussing the issue and considering various judgments including the judgment in Marry Chandrashekhar Rao's case (supra), in para 16 the Court observed as under :
"Therefore, merely because a given caste in 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 or the latter State "for the purposes of this Constitution."
In other words, the Constitution Bench of the Apex Court clearly held that merely because a member of the Caste or Tribe is notified in both the States and a person who is belonging to such a caste or tribe migrates from one such State to another does not mean that he or she is entitled to the benefits and privileges admissible to a members of similar caste or tribes which is notified in that State.
From the above two judgments, both of Constitution Bench of the Apex Court, the law can be summarised as under :
1) A person belonging to a caste or tribe which is notified for that State is entitled to the benefits wholly in that State and not the State where he/she migrates. 2) If a caste or tribe is notified as a caste or tribe in both the States, it does not necessarily mean that the migrant is entitled to the rights privileges and benefits admissible to a member of the Scheduled Caste or tribe of the migrant State.
7. Let us now examine whether the view of these two Constitution Benches has in any way being departed from , by the Apex Court in Beni Prasad and Anr. v. Narbada Prasad, , "Kumhar" was a notified Scheduled Tribe in certain districts of Madhya Pradesh including in Shahdol District. The family of the petitioner had been ordinarily residing in Shahdol District till 1952 when they shifted to Narsinghpur where the respondent was born. The respondent shifted to Shahdol in 1969. There was no dispute that he was Kumhar. The question was whether he would get the benefit of belonging to Kumhar community in Shahdol area also. The contention urged was that he should have been Kumhar in Shahdol District in 1950 when the Presidential notification was issued. The Apex Court did not accept the contention attracted as in that case those who were born after the Presidential notification would be rendered ineligible.
Next reliance was placed on the judgment in the case of State of Maharashtra and Ors. v. Ku. Tanuja, . In that case, the State Government sought to exclude the Bawa community who had migrated from the Sindh region from the list of Nomadic Tribes. The Apex Court noted the position of the earlier Bombay Presidency which recognized the Bawa community and subsequent Government notifications whereby recognition was given to the community as a Nomadic Tribe. Earlier a Writ Petition was filed where a Division Bench of this Court took a view that the Bawa community of Sindh community is part of Bombay Presidency. The Bawa community who had migrated from Sindh continued to get the benefit of Nomadic Tribes known as "Gosavi". By a subsequent resolution of 1-4-1987, the Bawa community was sought to be excluded. That was set aside on the ground that the Government Circular sought to overrule the judgment of the Court. But that could have been done if the State, for cogent reasons and based on the relevant material had come to the conclusion that the Bawas from Sindh region had lost their disadvantages in Society after their migration from Sindh. In absence of such material the Court struck down the subsequent resolution. This judgment, therefore, will be of no assistance for the proposition sought to be canvassed on behalf of the petitioner.
8. The next judgment relied upon is in the case of Sudhakar Vitthal Kumbhare v. State of Maharashtra, . The appellant was resident of village Sawargaon in Distt. Chhindwara in the State of Madhya Pradesh. As per the Presidential Notification issued in 1950, "Halba" is recognized as a Scheduled Tribe in the District of Chhindwara in the State of Madhya Pradesh. After re-organization, when Chandrapur was included within the territory of the State of Maharashtra, the caste "Halba" was recognized as a Scheduled Tribe also in the State of Maharashtra. The petitioner was brought up and educated in the district of Chhindwara. He applied for a job in the State of Maharashtra in open category and was selected as a Junior Engineer. He sought promotion to the post of Assistant Engineer against reserved vacancy on the basis of certificate of belonging to "Halba" tribe issued by the authorities in Madhya Pradesh and was promoted. Show cause notice was issued to him as to why he should not be reverted. He was reverted and consequently, the proceedings came to be initiated. The petition was dismissed by this Court against which an appeal was preferred to the Apex Court. The main contention urged on behalf of the appellant before the Apex Court was based on the observations in Kumari Madhuri Patil (I) v. Addl. Commr. Tribal Development, , wherein it was observed that during the course of employment if any dispute arises in regard to the benefit of reservation the dispute is required to be referred to a Scrutiny Committee in the course of the discussions, the Apex Court noted that earlier the region was one and which has been bifurcated. This issue has not been considered in any of the earlier judgments and then observed as under :
"In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe Halba/Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind."
On behalf of the respondents the learned counsel start that does not mean that State of Maharashtra has recognized all Halbas from the region of Chhindwara in the State of M. P. for benefits in the State of Maharashtra, for it would defeat the expression 'in relation to the State' as contained in Articles 341 and 342 of the Constitution of India as held by the Constitution Bench of the Apex Court in Marri Chandrashekhar Rao (supra). Also, the Presidential Notification has notified 'Halba' as a notified Scheduled Tribe in the State of Maharashtra. That has been done according to the learned counsel for the respondents not by the State of Maharashtra but by the Presidential notification considering the powers conferred on the President under Articles 341 and 342 of the Constitution of India. It is further submitted that the State of Maharashtra has not issued any notification that Halba Scheduled Tribe who migrates from the Chhindwara region of Madhya Pradesh is entitled to the benefit which Halba community domiciled in the State of Maharashtra are entitled to. If the Halbas from M. P. are entitled to the benefits that will be to the disadvantage of the Halba Scheduled Tribe in the State of Maharashtra. We are not called upon to answer the issue as the Apex Court in that case only directed the matter to be referred to the Committee and the appellant before it to be reinstated till the decision of the Committee.
In our opinion, this judgment in no way departs from the Constitution Bench judgment of the Apex Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribe? in the State of Maharashtra and another (supra)
9. Reliance next was placed on the judgment in the case of S. Pushpa and Ors. v. Sivachanmugavelu and Ors., . In that case, the issue was in respect of employment in the Union Territory of Pondicherry. Admittedly, the applicant was not a person belonging to the Scheduled Caste and Scheduled Tribe notified for the Union Territory. On consideration of the status of Union Territory, the Apex Court reiterated that insofar as Union Territories are concerned, the Administration acts on behalf of the President under Article 239 of the Constitution and as such, Scheduled Caste and Scheduled Tribes who are eligible for reserved post/services under Central Government are also eligible for reserved post/ services under the Pondicherry administration. In our opinion, this also does not in any manner depart from the view taken by the Constitution Bench judgments referred to earlier. In other words, the law laid down by the two Constitution Benches judgments continuous to hold the field.
10. Applying the ratio as culled out from the judgment of the Constitution Bench and the facts as set out herein, it would be clear that the petitioner is migrant to the State of Maharashtra. She was born in Bihar. The mere fact that she studied in Madhya Pradesh would be of no consequence. She at the highest will be entitled to benefits in the State of origin which is Bihar and would not be entitled to the benefits which the notified O.B.C. is entitled to in the State of Maharashtra. The mere fact of marriage to a person belonging to the same caste or any other reserved caste is of no consequence as marriage would not alter the legal position insofar as caste is concerned which is acquired by birth.
11. For the aforesaid reasons, we do not find any merit in the case and accordingly, we affirm the decision of the Caste Scrutiny Committee. In the light of that, rule is discharged. All the interim reliefs stand vacated.
12. On behalf of the petitioner, the learned counsel prays that the impugned order be continued atleast for the period of eight weeks from the date certified copy of the judgment is made available. Considering that the petitioner was elected to a post and there was interim relief in favour of the petitioner and the matter is decided at the admission stage itself, there will be an interim relief, as granted earlier by this Court, for a period of eight weeks from the date of receipt of the certified copy of the order of this Court.