Shri Shamrao Tukaram Naik vs Devchand College By Its Principal ...
2003 Latest Caselaw 282 Bom

JUDGMENT

R.M. Lodha, J.

1. The petitioner admittedly hails from Mattiwade in Hukkeri taluka, Belgaon district in Karnataka State. He has been appointed as lecturer in Devchand College, Arjunnagar, taluka Kagal, District Kolhapur in the year 1978 against the post reserved for N.T. candidate after he completed his post graduation. It is petitioner's case that he was confirmed in the said post in Junior College by order dated 15.10.1984. The petitioner's appointment and confirmation in Junior College is said to have been approved by the Deputy Director of Education. Thereafter in the year 1992, the petitioner was appointed in the senior wing of the first respondent college. That post was too reserved for N.T. candidate. In the appointment order dated 14.07.1992 whereby the petitioner was appointed in the senior wing of first respondent college, an endorsement was made that his appointment was on temporary basis and approval was granted only for the academic year 1992-93. It was also clarified that since the petitioner hails from Karnataka he cannot take advantage of reservation of Maharashtra State. Thereafter, for the academic year 1993-94, the Selection Committee found the petitioner suitable for appointment to the post of lecturer in English in the senior wing. However, one of the members of the said Committee representing University put up a remark against the petitioner's name that he was not eligible for being treated as N.T. candidate in Maharashtra and should be treated as an open category candidate. The petitioner is aggrieved by the endorsement contained in the appointment letter dated 14.07.1992 to the extent the endorsement was made that petitioner was not entitled to any benefit of reservation in Maharashtra State and the report of the Selection Committee dated 10.06.1993 wherein a remark has been put up by the representative of the University against the name of the petitioner that he was not eligible for being treated as N.T. candidate in Maharashtra and should be treated as open category candidate. By this writ petition, the petitioner prays for declaration that he was lawfully appointed as a candidate belonging to the backward category in the seat reserved for the N.T. candidate and direction to respondents 3 and 4 to recognise and approve the appointment of the petitioner in the post of lecturer in English in that category.

2. Mr. R.S. Apte, learned counsel for the petitioner, urged before us that the petitioner hails from Mattiwade, in Hukkeri taluka in Belgaon district, State of Karnataka which was earlier part of Province State of Bombay before the State Reorganisation in 1956 on linguistic basis. The learned counsel submitted that the petitioner belongs to Berad denotified tribe (Vimukta Jati) which is backward tribe both in the State of Maharashtra as well as State of Karnataka and, therefore, the petitioner is entitled to the benefit of reservation under Government Resolution dated 21.11.1961. In support of his submission, he relied upon the Constitution Bench judgment of the Apex Court in 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., .

3. On the other hand, the learned A.G.P. submitted that the judgment of the Apex Court in Action Committee (supra) does not support the case of the petitioner at all and rather, on the basis of the law laid down by the Constitution Bench of Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College, and the judgment in Action Committee (cited supra) which has affirmed and followed Marri Chandra, the petitioner's contention is wholly and squarely negated.

4. Marri Chandra was born in Tenali in the State of Andhra Pradesh. He claimed to be belonging to Gouda community also known as "Goudi". The said community is recognised as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950. Marri's father had obtained a scheduled tribe certificate from the Tahsildar and on that basis he got an employment in the scheduled tribe quota in the Government of India Undertaking and was placed at Bombay in the State of Maharashtra. Marri, thus, came to live in Bombay since the age of 9 years. After passing 12th standard examination of the Maharashtra State Secondary and Higher Secondary Examination Board, Marri submitted an application for admission to Seth G.S. Medical College seeking benefit of reservation in favour of the scheduled tribes. He was denied the admission to the M.B.B.S. course though scheduled tribe candidates who had secured lesser marks than him were admitted. The denial of admission was based on the circular dated 22.2.1985 issued by the Government of India which interalia provided that a scheduled caste/scheduled tribe person who has migrated from the State of origin to some other State for the purpose of education employment, etc., will be deemed to be schedule caste/tribe of the State of his origin only and will be entitled to derive benefits from that State and not from the State to which he had migrated. In the backdrop of these facts, the question before the Apex Court in Marri Chandra was, whether one who is recognised as scheduled tribe in the State of his origin continues to have the benefits of privileges or rights in the State of migration or where he later goes. Dealing with the said question the Constitution Bench of the Apex Court in paragraph 10 of the report observed thus:-

"10. It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere. But if sufficiently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however, are problems of social adjustment i.e. how far protection has to be given to a certain segment of socially disadvantaged community and for how long to become equal with others is a matter of delicate social adjustment. These must be so balanced in the mosaic of the country's integrity that no section or community should cause detriment or discontentment to other community or part of community or section. 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 in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. In other words, scheduled Castes and Scheduled Tribes say of Andhra Pradesh to require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic approach in mind, then the determination of the controversy in the instant case does not become difficult. For the purpose of understanding the problem, it may be worthwhile to refer to the Report of the Joint Committee of the Parliament on the Scheduled Castes and Scheduled Tribes (Amendment) Order Bill, 1967. It may also be worthwhile to refer to the proceedings of the Constituent Assembly on September 17, 1949 dealing with draft Articles 303 and 304, which later on became Articles 341 and 342 respectively. Dr. B.R. Ambedkar moving the Resolution observed as follows:

"That after Article 300, the following articles be inserted:

300-A. (1) The President may, after consultation with the Governor or Ruer of a State, by public notification specify the castes, races or tribes or parts of or groups within castes races or tribes, which shall for purposes of this Constitution be deemed to be scheduled Castes in relation to the State.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under Clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

300-B. (1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of a groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued by the President under Clause (1) of this article 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."

The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the gazette specifying all the castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the government of each State, thereafter, if any elimination was to be made from the list so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President."

5. In paragraph 21 of the report, the Apex Court referred to the views of Dr. B.R. Ambedkar, stated in the Constituent Assembly. Paragraph 21 of the report reads thus;

"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 or within the tribal area? It is a difficult question for me to answer. If that mater 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 Schedule 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 area areas or scheduled areas, in areas other than those which are covered by them......"

6. The aforesaid judgment in Marri Chandra delivered by the Constitution Bench was affirmed and followed in Action Committee which is noted in paragraphs 15 and 16 of the report. The relevant portion in paragraph 15 of the report wherein Marri Chandra was considered reads thus:

"15. .....In answering this question the Constitution Bench was called upon to interpret Articles 341 and 342 of the Constitution and determine what the expression "in relation to that State" read in conjunction with "for the purposes of this Constitution" seeks to convey. After referring to the provisions of Articles 14, 15 and 16 and the decision of this Court in Pradeep Jain (Dr.) v. Union of India the Constitution Bench took notice of the fact that Scheduled Castes and Scheduled Tribes had to suffer social disadvantages and were denied facilities for development and growth in certain States. To grant equality in those States where they suffered and were denied facilities for development and growth certain protective preferences, facilities and benefits in the form of reservation, etc., had to be provided to them to enable them to complete on equal terms with the more advantageous and developed sections of the community. It is not necessary to dilate on this point as the Constitution itself recognises that members belonging to the Scheduled Castes and Scheduled Tribes and other backward classes have to be given certain incentives, preferences and benefits to put them on an even keel with others who have hitherto enjoyed a major share of the facilities for development and growth offered by the State, so that the former may, in course of time, be able to overcome the handicap caused on account of denial of opportunities. The interpretation that the Court must put on the relevant constitutional provisions in regard to Schedule Castes/Scheduled Tribes and other backward classes must be aimed at achieving the objective of equality promised to all citizens by the Preamble of our 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 plan and unambiguous. It clearly states that the President may specify the castes or tribes, as the case may be, in relation each State or Union Territory for the purposes of the Constitution. It must also be realised that before specifying the castes or tribes under either of the two articles the President is, in the case of a State, obliged to consult 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 as specification in relation to any other State whose Governor the President has not consulted. True it is that this specification is not only in relation to a given State whose Governor has been consulted but is "for the purposes of this Constitution" meaning thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. The Constitution Bench has, after referring to the debates in the Constituent Assembly relating to these articles, observed that while it is true that a person does not cease to belong to his caste/tribe by migration 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 talent of an individual gets full scope to blossom and flourish. Realying that these are problems of social adjustment it was observed that they must be so balanced in the mosaic of the country's integrity that no section or community should cause detriment or discontentment to the other community. 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. The Constitution Bench summed up as under:

"In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic approach in mind, then the determination of the controversy in the instant case does not become difficult."

7. In paragraph 16, the Constitution Bench in Action Committee, observed thus:

"16. We may add that consideration for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. 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 purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution"

8. The two Constitution Benches of the Apex Court in unmistakable terms, thus, have held that Scheduled Castes and Scheduled Tribes of one State require protection as balance between the other communities and upon migration of such Scheduled Caste and Scheduled Tribe candidate to other State, he may loose the protection since the Scheduled Caste and Scheduled Tribe of the other State where such person has migrated require protection. This is how the problem is to be approached when the question arises whether a candidate upon migration to other State is entitled to the protection of the Scheduled Caste and Scheduled Tribe in the State where he has migrated. Applying this legal position to the facts of the present case, it would be seen that the petitioner hails from Hukkeri taluka in Belgaon district in Karnataka, he migrated to the State of Maharashtra and after completing his education, he got employment in Maharashtra. Merely because the caste to which the petitioner belongs is also recognised as a Vimukta Jati (backward class in the State of Maharashtra), the petitioner shall not be entitled to the protection and benefit of reservation. In this view of the matter, the view taken by the authorities that the petitioner being a backward class from the State of Karnataka cannot take advantage of reservation in the State of Maharashtra cannot be faulted and is rather in conformity with the law laid down by the Apex Court in Marri Chandra and the Action Committee.

9. Writ petition, accordingly, is liable to be dismissed which we order hereby. Rule is discharged. No costs.

10. We, however, clarify that the petitioner's appointment as lecturer in senior college having been continued since 14.07.1992, shall be treated as appointment against open category and the concerned authorities shall grant approval as and when the vacancy arises in open category.