Smt. Radhabai Charansingh ... vs State Of Maharashtra, Through The ...
2007 Latest Caselaw 326 Bom

JUDGMENT

R.C. Chavan, J.

1. The petitioner, who has been elected as Municipal Councilor of Municipal Council, Wardha, takes exception to the order passed by respondent No. 3 Collector disqualifying her from membership of Municipal Council, Wardha, because her caste certificate has been cancelled by respondent No. 2 - the Divisional Caste Scrutiny Committee, Nagpur.

2. According to the petitioner, she was born on 10-6-1963 in Adilabad District (Andhra Pradesh), where her father was serving in the Railways. Her father belonged to Mehtar community, which is recognized as Scheduled Caste in Andhra Pradesh. On 9-2-1981, she was married to Charansingh Chaware, resident of Wardha, who also belongs to Mehtar community, which is recognized as Scheduled Caste in State of Maharashtra. Since her marriage, she has been residing with her husband at Wardha in State of Maharashtra, that is for about 25 years. She, therefore, claims to be ordinary resident of State of Maharashtra. She had obtained a certificate from the Sub-Divisional Officer, Wardha, to the effect that she belonged to Scheduled Caste. She contested election to the Municipal Council, Wardha, and was elected from the ward reserved for Scheduled Caste women in December 1991 and 1996. Again, while contesting election for the third time, she obtained requisite caste certificate from the Sub-Divisional Officer on 8-7-2004 and again successfully contested municipal election and was declared elected on 27-11-2006.

3. The petitioner's caste certificate had been referred to the Caste Scrutiny Committee, which held, by its order dated 13-12-2006, that the petitioner was not entitled to claim the benefit of reservation and her caste certificate granted by the Sub-Divisional Officer on 8-7-2004 was cancelled. As a result of cancellation of such caste certificate, the Collector, Wardha, cancelled her election as Municipal Councilor. Aggrieved thereby, she has filed the present petition challenging the order passed by the Caste Scrutiny Committee on several grounds.

4. The petitioner contends that cancellation of a certificate due to failure to submit the documentary evidence about residence in State of Maharashtra prior to 1950, was illegal and contrary to law. She submitted that she was ordinary resident of State of Maharashtra since her marriage in 1981 for over 25 years and, therefore, complied with the requirement under Section 20 of the Representation of People Act. She submitted that the Government Resolutions, upon which the Committee placed reliance, pertained to migration for the purpose of employment, education, etc., and do not apply to migration on account of marriage and, therefore, the Committee was not justified in applying observations from the judgment of the Supreme Court in Action Committee v. Union of India . She submitted that she belongs to Mehtar caste, which is notified in Scheduled Caste both in Andhra Pradesh and State of Maharashtra and the disadvantages and sufferings that her community had to undergo in Andhra Pradesh were the same as in State of Maharashtra and, therefore, she could not be denied such benefit. Therefore, the Committee was not justified in denying validity of her caste certificate merely on the ground that she was born in Andhra Pradesh and stayed there till her marriage. She further assailed the order of the Caste Scrutiny Committee on the ground that it was contrary to the principles of natural justice and fair play, since she was not given adequate opportunity to place her case before the Committee.

5. The petitioner, therefore, prayed for a declaration that she is ordinary resident of State of Maharashtra within the meaning of the term as defined in Section 20 of the Representation of People Act and that she is entitled to claim the benefit of belonging to Mehtar (Scheduled Caste) in State of Maharashtra. She also prayed for quashing and setting aside the orders passed by the Divisional Caste Scrutiny Committee on 13-12-2006 and the Collector on 15-12-2006. She also seeks to have respondent No. 3 restrained from taking steps to fill up the post of Municipal Councilor from Ward No. 33 on account of invalidation of her caste claim.

6. We have heard the learned Advocate for the petitioner and the learned AGP for the respondents.

7. The learned Advocate for the petitioner submitted that the Caste Scrutiny Committee has placed an unwarranted restriction on the petitioner's claim of belonging to Scheduled Caste. He submitted that the petitioner by birth belongs to Mehtar (Scheduled Caste), which is recognized as such in her State of birth, Andhra Pradesh, as well as in Maharashtra and, therefore, it is not the case that the petitioner has acquired her Scheduled Caste status by marriage. He submitted that the decision of the Committee amounts to denial to the petitioner a right which has been guaranteed to her under Articles 15 and 16 of the Constitution.

8. His learned Adversary Smt. B.H. Dangre, the learned AGP, submitted that Clause (4) of Article 15 of the Constitution permits a State to make any special provision for advancement of the Scheduled Castes and the Scheduled Tribes. Similarly, Clause (4) of Article 16 permits a State to provide for reservation in appointments in favour of citizens belonging to backward classes, which, in the opinion of the State, is not adequately represented. She submitted that under Article 340 of the Constitution, the President could appoint a Commission to investigate the conditions of socially and educationally backward classes and to make recommendations to the State to take steps to remove such difficulties and to improve the conditions of backward classes. Articles 341 and 342 of the Constitution enable the President to notify castes or tribes, which shall for the purpose of the Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory. The learned AGP submitted that after consulting the Governors of the concerned States, the President has accordingly notified Scheduled Castes or Scheduled Tribes in relation to various States by Presidential Orders dated 16-8-1950 and 6-9-1950, which have been amended from time to time by Acts passed by the Parliament. She submitted that the expression .for the purpose of this constitution. and .in relation to the State. appearing in Articles 341 and 342 of the Constitution had come up for consideration before the Apex Court in Marri Chandra v. Dean S.G.S. Medical College , which was followed up by the Apex Court in Action Committee v. Union of India . She also placed reliance on the decisions of the Supreme Court in (i) S. Pushpa and Ors. v. Sivachanmugavelu and Ors. and , as also the decision in (ii) Chandigarh Administration and Anr. v. Surinder Kumar and Ors. . The question in these cases was somewhat different inasmuch as they concerned reservation in recruitment in Union Territories for migrants from States. In any case, as regards migrants, since the judgments do not take a view different from that taken in the cases of Action Committee and Marri Chandrashekhar Rao, it is not necessary to refer to these three judgments.

9. The learned AGP also placed reliance on two unreported judgments of the Division Bench of this Court in Mrs. Chetna w/o Rajendra Tank v. The Committee for Scrutiny of Caste Certificates and Ors. in Writ Petition No. 2569 of 2005, decided at Nagpur on 24-6-2005, and Mrs. Savitri Shivaji Kumbhar v. The State of Maharashtra and Ors. decided at Mumbai on 22-3-2005. Another Bench of this Court had taken a similar view in the judgment in Bankimchandra v. State of Maharashtra , (Bankimchandra II.), which was a case of a petitioner, whose father was employed in Maharashtra and had, therefore, shifted to Maharashtra in 1976. The Bench had not followed judgment of the Apex Court in Sudhakar Vitthal v. State . In all these judgments, reliance has been placed on the judgment of the Supreme Court in Action Committee, which, in turn, reiterates the ratio laid down in Marri Chandrashekhar Rao's case. In Chetna Tank's case, the question was of a migrant from a part of erstwhile State of Madhya Pradesh. The petitioner belonged to Gujar-Khadiya, a caste recognized as Other Backward Class in Maharashtra as well as in Madhya Pradesh. The petitioner had come to Maharashtra State on 9-2-1981 upon her marriage and since then she was domiciled in Maharashtra. In para 6 of the judgment, the Court summarized the law laid down in Action Committee and Marri Chandrashekhar Rao's cases, as under:

...From the above two judgments, both of Constitution Benches of the Apex Court, the law can be summarized 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. (Emphasis supplied)

The learned AGP, therefore, submitted that the petitioner would not be entitled to have the benefit of belonging to Mehtar (Scheduled Caste) in the State of Maharashtra. She further submitted as per Entry 81 in the Union List, only the Central Government is competent to enact a law relating to migration and since there is no stipulation permitting a migrant in the position of the petitioner to claim the benefit of caste in any such Central enactment, the petitioner would not be entitled to such benefit.

10. Her learned adversary submitted that in 1976, the area restrictions were removed, principally, after taking into consideration the fact that people migrate from their home steads to other places. He submitted that it would be unjust and unconstitutional to deny to the petitioner the right which she acquired by birth in a family of Mehtar (Scheduled Caste). He submitted that recognizing the right as such would not result in any harm to the interpretation put on words .for the purpose of the constitution. and .in relation to the State. appearing in Articles 341 or 342 of the Constitution or Clause (2) of the Constitution Scheduled Caste Order, 1950. He submitted that even after giving full effect to the words in relation to the State appearing in the above provisions, it would be impermissible to deny to the petitioner the rights granted to her. Review of legal provisions:

11. We have carefully considered the reasons given by the Bench deciding Bankimchandra II for not following the judgment of the Apex Court in Sudhakar Vitthal. Two unreported judgments relied on by learned A.G.P. (Chetana Tank and Mrs. Savitri) take almost a similar view and hence are not analysed separately. In our attempt to comprehend the causation in Bankimchandra II, we undertook a journey from Articles 341 and 342 of the Constitution, through the Presidential Orders, amendments thereto and the legislation pertaining to States Reorganization, up to the various judicial pronouncements on the subject. We feel compelled to journalise this journey in the narrative to follow in order to ensure inking as to how the issues appeared to us. Articles 341 and 342 of the Constitution read as under:

341. Scheduled castes.

(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 castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes 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 Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid notification issued under the said clause shall not be varied by any subsequent notification. 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. (Emphasis supplied).

12. Accordingly the President issued the Constitution (Scheduled Castes ) Order 1950 on 16.08.1950 and the Constitution (Scheduled Tribe) Order on 06.09.1950. Clause (2) of the Constitution (Scheduled Castes) Order, 1950, notified on 10th August, 1950 reads as under:

2. Subject to the provisions of this Order, the castes, races or tribes, or parts of, or groups within, castes or tribes, specified in Parts I to XVI of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule. (Emphasis supplied)

Schedule appended to this Order shows that not all castes in any part of the scheduled are treated as Scheduled Castes for an entire State. Some castes are common throughout the State, while some others are prescribed to be scheduled castes in a particular district, or are expressly excluded in a particular area, e.g. caste Mochi was treated as Scheduled caste in the erstwhile State of Bombay, except its Gujarat Division.

13. Clause 2 of the Constitution (Scheduled Tribe) Order, 1950 notified on 06.09.1950 is worded similarly to Clause 2 of the Constitution (Scheduled Castes) Order, quoted above. The schedules to this order also enumerated tribes which were treated as tribes in a whole State or in specified areas of a State.

14. It may be noticed that Clause 2 of the two Orders specifically recite that castes or tribes enumerated are .in relation to the State., and the members of the tribes or castes concerned, residents in the localities specified in relation to them, would be treated as scheduled castes or scheduled tribes in relation to those localities. Clause 2 thus makes 'residence' relevant. The question however is of the date on which residence is to be ascertained.

15. Since schedules to the two orders indicated that persons belonging to a particular tribe or caste, residing in localities specified in the various parts listed in the schedules were to belong to scheduled caste or tribe in relation to the states as mentioned in Clause 2 of the Orders, the Schedules had to be obviously amended upon linguistic reorganization of the states undertaken in 1956 by the States Reorganization Act. When geographical composition of states changed so drastically schedules could not have referred to localities which ceased to be parts of such states. In this reorganization a bilingual State of Bombay was formed by adding to the erstwhile territory of the State of Bombay Marathi speaking areas from the States of Madhya Pradesh and Hyderabad, and Gujarati speaking areas of states of Saurashtra and Kuchh. Kannada speaking areas of the erstwhile Bombay State were removed from the area of new State of Bombay. This State was latter bifurcated w.e.f. 1st May of 1960 into States of Maharashtra and Gujarat by the Bombay Reorganization Act of 1960. Sections 26 and 27 thereto referred to in the judgment of Bankimchandra II , quoted elsewhere in this judgment effected amendments to the relevant parts of the Presidential Orders. These Presidential Orders were later on specifically amended by acts of Parliament to remove the area restrictions. Landmark Judgments : Marri Chandra & Action Committee.

16. In the context of enactments referred to above, and the Scheduled Castes and Scheduled Tribes Orders notified by the President, the law evolved by the judgments may now be considered. Bankimchandra-II mainly relies on the judgment in the Action Committee v. Union of India .

17. Since judgment in Action Committee's case is based entirely on the earlier judgment of the constitution bench in Marri Chandra v. Dean S.G.S Medical College, reported at , it may be useful to recount the facts of the case and the law laid down therein. The petitioner, therein, hailed from Tenali in Andhra Pradesh and belonged to 'Gouda' community, which is also known as 'Goudi', recognized as Scheduled Tribe in Andhra Pradesh. Petitioner's father had secured employment with Government of India undertaking in Mumbai as belonging to Scheduled Tribe and had shifted to Mumbai when the petitioner was 9 years old. The petitioner claimed benefit of his Scheduled Tribe status for getting admission in Medical College in Maharashtra though tribe Gouda was not recognised as Scheduled Tribe in the State of Maharashtra. The Apex Court, therefore, considered question whether the petitioner could claim benefit of his Scheduled Tribe status on the basis of such a certificate from Andhra Pradesh, in the State of Maharashtra. In this context, after examining provisions of Articles 341 and 342 of the Constitution, the Court observed that full effect had to be given to the expressions .in relation to that State. and .for the purpose of this Constitution, appearing in the two articles. In paragraph 8, the Court observed that equality under the Constitution is a dynamic concept which must cover every process of equalization. The Court then considered rationale of prescribing specific caste or tribe for beneficial treatment in specific states or localities. In paragraph 9 the Court observed that in order to make those who have suffered due to under development equal to more advantageous or developed sections of the community, reservations had to be provided. A sentence in paragraph 9 reproduced below, is however, significant:

This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole. (Emphasis supplied).

The Court then went on to observe in paragraph 10 as under:

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 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.

18. After considering the necessity of harmoniously and broadly interpreting Articles 341 and 342 of the Constitution so as to ensure that rights granted under Articles 14, 16, 19 and 21 are also protected, the Court observed in paragraph 13 as under :

It was submitted that the words .for the purposes of this Constitution. must be given full effect. There is no dispute about that. The words .for the purposes of this Constitution. must mean that a Scheduled Caste so designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. 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. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e. who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution. (Emphasis supplied).

Since specific problem before the Court was of a boy belonging to tribe which was recognised as Scheduled Tribe in Andhra Pradesh but not in Maharashtra, the Court observed in paragraph 14 as under:

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 (sc. 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.

19. In paragraph 20 the Court held that reservations should and must be adopted to advance the prospects of weaker sections of society, but while doing so care should be taken not to exclude the legitimate expectations of the other segments of the society. The Court then concluded in paragraph 22 that the petitioner was not entitled to be admitted to Medical College in Maharashtra on the basis of his belonging to Scheduled Tribe in Andhra Pradesh. Though the Court did not put an end to the educational prospects of the petitioner who already been prosecuting studies in the Medical College, presumably under the interim orders of the Court.

20. It is this decision which has been reiterated by the Apex Court in Action Committee's case, reported at 1994 (5) SCC 244. Unlike the statute law, which can be extended by analogy or by inductive or deductive logic, observations in the judgment have to be always read in the context of the facts of the case which led to the controversy as observed by this Court in Mohd. Bilal v. A.N. Roy reported at . As we record our understanding of restatement in Action Committee of the law laid down in Marri Chandrashekhar Rao, we would endeavour to adhere to the context so that impermissible logical extensions, or digressions, do not result in dilution of the law laid down by the Constitution Bench of the Apex Court in Marri Chandrashekhar Rao.

In Action Committee the Court had formulated the following question for consideration:

Where a person belonging to a caste or tribe specified for the purpose 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 Caste and/or Scheduled Tribes in State B?.

21. The Court observed that what was important to notice was that castes or tribes have to be specified in relation to a given State or Union territory. The Court took a note of communications issued by the Government of India about the manner of examining caste claims and issuing certificates. A letter dated 12th August, 1981 clarified that in order to become eligible to be treated as member of caste 'in the schedule, in relation to the State of Maharashtra, the person should be permanent resident of the State before 10.08.1950 or 06.09.1950 and observed that since the State of Maharashtra did not exist in 1950, it would be reasonable to understand the State of Maharashtra to mean geographical area now forming the State of Maharashtra. A note appended at the foot of proforma of caste certificate to be issued was quoted in paragraph 7 of the judgment of the Supreme Court and it explains that the expression ordinarily residing would have the same meaning as in Section 20 of the Representations of People Act.

22. Petitioners in Action Committee's case were migrants who were aggrieved by denial of benefits and privileges by the State of Maharashtra because they were not shown to be the residents of Maharashtra area on 10.08.1950/06.09.1950. The Court noticed that the petitioners claimed benefits of their caste/tribe status even after migration. The Court quoted extensively the conclusion drawn up in Marri Chandrashekhar Rao's case and enumerated considerations for specifying a caste or tribe as scheduled caste or scheduled tribe in paragraph 16 as under:

16. We may add that considerations 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.

That is why in answer to a question by Mr. Jaipal Singh, Dr. Ambedkar answered as under:

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 this 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....

Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin.

The Court also quoted the answer given by Dr. Ambedkar to Shri Jaipalsingh in debates in the Constituent Assembly on this question. The Court concluded in paragraph 18 by recording respectful agreement with the views expressed in the earlier decision of Marri Chandrashekhar. 23. From a report of this judgment published at , it appears that by the same judgment the Court had allowed appeal by the State of Maharashtra against the judgment delivered by the Division Bench of this Court in State of Maharashtra v. Kannaiya Devjibhai Borisa and and Ors. reported at AIR 1993 Bombay 394. In that case Division Bench of this Court had held that there was no intelligible basis for fixing a date for the purpose of ordinary residence of the State of Maharashtra and had upheld the challenge to instructions to the contrary in the Government Resolutions. The Division Bench of this Court had held that upon fulfilling the tests of belonging to a class and ordinary residence in the territory, the petitioner was entitled to the status within the State of Maharashtra, without reference to any date, signifying that 'date' was not a relevant consideration. In our humble opinion, 'date' (16.08.50/06.09.50) is relevant not for finding out when the person migrated, but to ascertain where the person or his ancestors resided on or before such dates, to comply with requirements of Clause 2 of Constitution (Schedule Castes/Scheduled Tribes) Orders. In this view, this reversal does not make date of migration relevant. Our analysis:

24. We may recall that in Marri Chandra's case caste of the petitioner was not recognized as Scheduled Tribe in the State of Maharashtra, and the question of state reorganization was not relevant. There can be no doubt that if a person belongs to a caste which is included in the scheduled castes or tribes in his home state, but not in the state of migration, he would not be entitled to the benefit of his status in the State where he migrates, because, as held by the Supreme Court in paragraph 10 of Marri Chandra's case, upon migration such a person may not suffer same inhibitions and handicaps in the State to which he migrates, where he would not be treated as a member of scheduled castes or tribes. We humbly feel that it would be impermissible to stretch this ratio too far to conclude that even if the petitioner is shown to belong to a caste which is recognised as scheduled caste or scheduled tribe in the state of migration, which would expose him to the same handicaps and inhibition as in the home state, he could still be denied benefit of reservation. If a person is left to suffer equally even in the state of migration he would be entitled to be treated on par with persons belonging to his caste in the state of migration as well. If a contrary impression is created by any judgment, we feel that in order to follow the concept of equality such impression has to be erased. The observation of the Apex Court in paragraph 8 in judgment in Marri Chandra's case, may be recalled. .Equality under the constitution is a dynamic concept which must cover every process of equalisation.

25. Division Bench of this Court in Bankimchandra-II observed as under at page 668 about judgment in Action Committee's case. .Having said so, the law was summarised in the judgment of the Court 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.

26. As far as first proposition is concerned, it is directly deduced from Marri Chandra's case. As far as second proposition is concerned, though we could not locate such summation in Action Committee's judgment, from the use of expression .it does not necessarily mean, we understand the second proposition to mean that the Court wanted to conclude that when a caste or tribe is notified as scheduled caste or scheduled tribe in both, the home state as well as state of migration, entitlement to such rights, privileges or benefits would depend on establishment of the claim therefor but would not automatically follow. Had the Court desired to rule out such a status to a migrant the second proposition could have been phrased as under:

(2) It means that the migrant is not entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste or tribe of the migrant State if a caste or tribe is notified as a caste or tribe in both the States,

27. We feel fortified in drawing such conclusion from observation of Apex Court in paragraph 16 of judgment in Action Committee quoted in paragraph 22 of this judgment.

28. It appears to us that the Court wanted to exclude benefit of same nomenclature being taken for seeking reservation in the State of migration. If, however, a person belonged to the same caste or tribe as contrasted with a caste or tribe bearing same nomenclature, then fortunes of such a person would not be ruined. Such a person may be entitled to establish that he belongs to a caste or tribe for which the rights, privileges and benefits are admissible in the State of migration.

29. Incidentally even the Bench deciding Bankimchandra II had used the expression having the same nomenclature in paragraph 9 of its judgment.

30. In Bankimchandra II, the Court refused to follow Sudhakar v. State, reported at observing in paragraph 10 that .The issue was not answered. The attention of the Apex Court was not invited to the provisions of the State Reorganization Act as also to the Bombay State Reorganization Act." The Court had referred to the provisions of Sections 26 and 27 of the Bombay State Reorganization Act which have been referred to in the earlier paragraphs of the judgment. We do not see as to how the provisions of Sections 26 and 27 of the Bombay State Reorganization Act or the provisions of State Reorganization Act 1956 would alter the conclusion drawn by the Apex Court in Sudhakar v. State. We find that in Sudhakar's case the Apex Court was alive to the fact that there was a States Reorganization Act which had altered the areas of the concerned state as the Act was referred to in paragraph 5 of the judgment. Sections 26 and 27 of the Bombay States Reorganization Act were obviously necessary in order to amend schedules to Constitution (Scheduled Castes/Scheduled Tribes) Orders, because as pointed out earlier the schedules enumerated specific castes and tribes with reference to specific localities. Since the localities had undergone a change, the schedules had to be amended. After reading judgment in Bankimchandra II's case, it was not clear to us as to how these changes in the schedules, on account of change of area comprising the State, would make observations of the Apex Court in Sudhakar v. State inapplicable.

31. A small digression in the manner in which political units are formed may be useful. In the historical past, political units were formed by conquests or annexation. These units did not necessarily represent people belonging to one caste/tribe/community. Reorganization of the states taken up after India attained independence was aimed at creating linguistic units and not caste based units. It is impermissible to believe that a caste would be spread over only one political unit and would not spill over areas adjoining a political unit. Therefore, formation of states is not a material consideration in deciding the rights of the parties with reference to their castes/tribes. There can be no doubt that since the caste is an inherited baggage, a person would carry his caste wherever he goes. There can also be no doubt that the founding fathers of this Republic aimed at bringing about upliftment of castes and tribes which they found to be at a disadvantage at the time of formation of this republic. Therefore, these castes and tribes had been identified and notified in the Presidential Orders. Hence, to enable a person to claim benefits of his belonging to a particular caste or tribe, he would have to show that he or his ancestors (a) belonged to a particular caste (b) identified in relation to a states, and (c) hailed from locality included in the Constitution (Scheduled Caste/Scheduled Tribe) Orders. The expression in relation to the State. should not become a handicap or restriction on the freedom of the person or his ancestors to migrate in search of livelihood. Shackling a person to his home state for eternity just in order to give benefits of reservation would amount to putting fetters on his freedom which were not intended by the expression used either in Article 341 or 342 of the Constitution Clause 2 of the Constitution (Scheduled Caste/Scheduled Tribe) Orders, 1950.

32. It may be seen that Clause 2 of the Constitution Scheduled Caste Scheduled Tribe Orders refers to residence. One of the instructions issued by the Government of India required a person to be ordinarily resident of the locality in which the caste or tribe was recognised as scheduled caste or scheduled tribe. The instructions also prescribed that the expression ordinarily resident would have same meaning as in Section 20 of the Representation of People Act. We do not see these provisions as prohibiting all types of migration, or requiring a person to be shackled to his place of origin in order to get benefits of reservation. We feel that such a requirement would scuttle the aim of the founding fathers to usher an egalitarian era and remove inequalities in the nation.

33. Migration is a part of life. Ordinarily people would migrate to greener pastures, where there are better chances of survival and prosperity. People from poorer neighbourhoods with limited prospects therefore flock to states, like Maharashtra, and within the state to more prosperous areas. Recognizing this reality area restrictions in the Constitution (Scheduled Caste/ Scheduled Tribe) Order were later removed. These persons from backward areas are obviously at a disadvantage as compared to their counterparts in advanced and prospering localities. Therefore, upon migration they do not occupy the top of the social pyramid but push at the bottom, and so would be entitled to parity with their compatriots. Migration too is a tool of removing inequality. Just as water finds its level, so do people. Any stratagem to discourage migration would run counter to the object of the Republic to bring about equality and on the other hand would perpetrate regional imbalance. If the object of giving full effect to the expression in relation to that state and .for the purposes of this Constitution in Articles 341 and 342 is fulfilled without depriving a migrant of pacify with persons of his own caste (not caste with same nomenclature) in the State of migration, fixing cut off dates for migration may amount to exceeding the constitutional restrictions by reading what the articles do not contain.

34. We may recall once again the dictum of paragraph 8 of the judgment in Marri Chandra's case, namely that equality under the Constitution is a dynamic concept which must cover every process of equalisation and therefore, feel that denying a right, privilege or benefit conferred by the Constitution upon an under privileged person on the basis of artificial divide created by reorganization of states would run counter to the process of equalisation. It is impermissible for us to contribute Judicial bricks for building. Berlin Walls. dividing states.

35. In Bankimchandra II, a question of encroachment by migrants on the benefits available to locals has been raised, as a reason for concluding that migrants would not be entitled to parity with locals in the matter of reservations. However, even while doing so, in paragraph 9 of the judgment, reference is made to caste of same nomenclature. The apprehension of the Court thus seems to be about migrants, having a caste having same name, eating away the pie meant for locals. If however migrant were to belong to the same caste, who become aliens in their own homeland which gets divided, who marry and mingle with locals and share the same ethos and levels of disadvantages, locals are unlikely to have any grudge. It may be impermissible to raise a bogey of such imaginary grievance by locals to deny to their own Kinsmen a share in the benefits.

36. In the year 2000 the State of Maharashtra enacted Maharashtra Scheduled Caste Certificates Act, 2000. This act provides for the procedure to be followed in seeking caste certificates and verification of such caste certificates by Scrutiny Committees. Section 18 of the Act empowers the Government to make Rules to carryout purposes of the Act. Section 19 enables the Government to remove difficulties. In exercise of powers under Section 18 of the Government, had framed the Maharashtra Scheduled Tribes (Regulation of issuance and Verification of) Certificate Rules, 2003. These rules obviously apply only to the scrutiny of caste claims of scheduled tribes but may be a useful indicator of what the State feels. Rule 5 thereof provides for grant of scheduled tribe certificates to migrated persons.

Rule 5(1) may be reproduced as under:

5(1) Migration from other States to Maharashtra State:

(a) The Competent Authority, if satisfied, may issue Scheduled Tribe Certificate, in FORM C1 to an applicant who has migrated to Maharashtra State from any other State or Union Territory, on production of the Scheduled Tribe Certificate issued to his father or grandfather by the concerned Competent Authority of that State.

(b) If the Competent Authority feels that before issuing such a Scheduled Tribe Certificate a detailed enquiry is necessary, he may do so through the applicant's State of origin.

(c) A Scheduled Tribe Certificate holder who has migrated to Maharashtra from the State of his origin for the purpose of seeking education, employment etc., will be deemed to be a Scheduled Tribe of the State of his origin and will be entitled to derive benefits from the State of his origin and not from the State of Maharashtra.

Explanation : For the purpose of Sub-rule (1), .Migrant from other State means

(i) a person who has migrated to Maharashtra State from any other State/Union Territory on or after the First Presidential Order i.e. 6th September, 1950;

(ii) a person whose tribe is scheduled as a Scheduled Tribe in his original State, but not in Maharashtra State and the person whose tribe is scheduled as Scheduled Tribe in Maharashtra State as well as in his original State having his ordinary residence on the date of the notification of Presidential Order scheduling his tribe has been in the State/Union Territory other than Maharashtra would both be treated as migrants.

37. Bench deciding Bankimchandra-II has ruled that a person who has migrated to the State after formation of the State of Maharashtra i.e. after 1st May, 1960 would not be entitled to such a certificate. We have been unable to locate the source of this prescription since such a date is nowhere referred to in any of the rules, it at the most could be the date of enforcement of Bombay Reorganization Act. On the other hand explanation (i) to Rule 5(1) defines a migrant as a person who has shifted after 06.09.1950 and does not prescribe outer limit of 01.05.1960. As already recounted under Section 26 and 27 of the Bombay Reorganization Act, cannot be interpreted to import any such notion. At the cost of repetition we may point out that those sections, of necessity, had to modify the schedules to the Constitution (Scheduled Castes/Scheduled Tribes) Orders, 1950 because the areas had undergone a change. Even without importing any such date it is possible rather necessary, to deal with entitlement of persons claiming benefit of reservation. Conclusions:

38. To sum up:

(i) It is necessary to give full effect to both the expressions .for the purpose of this constitution. as well as .in relation to the State., appearing in Articles 341 and 342 of the Constitution and Clause 2 of the Constitution Scheduled Tribe and Scheduled Castes Orders, 1950, in order to identify the beneficiary correctly i.e. by ensuring that he belongs to caste identified with reference to a state as scheduled caste or tribe.

(ii) The object of including a caste or a tribe in the schedules to the orders was to do away with their disadvantaged position in the areas where they resided vis-a-vis other population. The crucial test would therefore be whether the person concerned suffers the same degree of disadvantage vis-a-vis other segments, as other local people of his caste suffer or whether as a migrant, he is placed on a higher pedestal.

(iii) Extending benefits to a migrant does no offence to the expression 'in relation to the State' in Articles 341/342 of the Constitution or Clauses 2 of Scheduled Caste/Scheduled Tribes Orders, 1950, since entitlement of such a person would have to be still decided with reference to the origin of such migrant and identification of migrant's caste as backward in relation to such State.

(iv) Date too is equally relevant in order to identify the person as belonging to caste included in the schedule on the date of such inclusion with reference to locality identified in the schedule. Therefore, a person claiming benefit would have to show that his ancestors hailed on the date of inclusion of caste in schedule from a place identified in the schedule. In other words, the relevant date is not date of migration but date of inclusion of caste or tribe in the schedule.

(v) Reorganization of States did not proceed on the basis of castes or tribes but on linguistic basis and therefore, localities of persons entitled to the benefit of reservation got divided in different states.

(vi) If upon removal of area restrictions, in the entire area of the State as originally existed on the date of notification of Constitution (Scheduled Castes/Scheduled Tribes) Orders, the persons concerned could avail of the benefits of reservation, there is no reason why they should be denied such benefits upon reorganization of the states, in which a part of their locality was included.

(vii) The ratio of the decision in Marri Chandra is only that a migrant would be disentitled for reservation in the state of migration if his caste is not notified as scheduled caste or scheduled tribe in the state of migration. (Since in Marrie Chandra's case the caste Gouda was notified in the State of Andhra Pradesh but not in Maharashtra). It would be impermissible to conclude that even though his caste is so notified in the State of migration, he would be disentitled to benefits, since such conclusion would frustrate the very object of providing benefits enumerated at (ii) above.

(viii) In Action Committee while explaining and following the ratio in Marri Chandra's case, the Apex Court must be held to have merely sought to deny benefits to migrants belonging to a caste of same nomenclature, by consciously choosing the expression .same nomenclature. and avoiding the use of words .same caste. This implies that if persons belong to the 'same caste' they were not to be denied the benefits.

(ix) Section 26 and 27 of the Bombay State Reorganization Act merely amend the schedules as a corollary to creation of State of Maharashtra and have no bearing on the question of entitlement of the migrants to reservation with reference to date on which the state was created.

39. Since the petitioner claims to belong to Mehtar (Scheduled Caste) by birth as well as marriage, and since the caste is recognized as Scheduled Caste in both, her State of birth. Andhra Pradesh, and State of her matrimonial home. Maharashtra, she must prove her claim before the Caste Scrutiny Committee. Should she succeed in establishing her claim, she would be entitled to benefits of reservation, as, in that case, she would suffer the same disadvantages in Maharashtra which other persons belonging to Mehtar (Scheduled Caste) are subjected to.

40. The Government Resolution dated 24.08.1995, on which the Committee placed reliance for invalidating the petitioner's caste claim, is based on mis-reading the judgments of Apex Court in Action Committee's case.

41. In view of this, the petitioner would be entitled to have her caste claim as belonging to Mehtar (Scheduled Caste) examined by the Caste Scrutiny Committee with reference to our conclusions in para 38 above. The order passed by respondent No. 2 Divisional Caste Scrutiny Committee on 13-12-2006 (Annexure-Q to the petition) is quashed and set aside. Respondent No. 2 is directed to decide the petitioner's caste claim afresh within one month of her appearance before the Caste Scrutiny Committee. We direct the petitioner to appear before the Committee on 30-4-2007. After the decision by respondent No. 2 Caste Scrutiny Committee, respondent No. 3 Collector shall reconsider the question of petitioner's entitlement to be a member of Municipal Council, Wardha.

42. Rule is made absolute in above terms. However, in the circumstances of the case, there shall be no order as to costs.