Bombay High Court
Preeti Gopalrao Kamble vs College on 10 October, 2012
Bench: R. M. Borde, S. S. Shinde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3627 OF 2011
Preeti Gopalrao Kamble,
age: 20 years, Occ: student,
R/o Azad Nagar, Zalkot Road,
Udgir, Tq.Udgir, Dist.Latur. Petitioner
Versus
1 The State of Maharashtra,
through its Secretary,
Social Welfare Department,
Mantralaya, Mumbai.
2 The Divisional Caste Scrutiny
Committee No.2,
Aurangabad Division,
Latur.
3 The Sub Divisional Officer,
Udgir, District Latur.
4 The Registrar,
Maharashtra University of
Health Science, Nashik.
5 The Principal,
Dhanuwantari Ayurved Medical
College, District Latur. Respondents
Mr.Anandsingh S. Bayas, advocate for the petitioner.
Mrs.S.D.Shelke, A.G.P. For Respondent Nos.1 to 3.
Mr.P.S.Dighe, advocate holding for Mr.V.R.Dhorde, advocate for
Respondent No.4.
Respondent No.5 served.
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WITH
WRIT PETITION NO.7138 OF 2012
Narsabai d/o Govind Kamble,
alias Sau.Neha w/o Ghamsham Kamble,
age: 42 years, Occ: service as
Staff Nurse, Government Medical College
and Hospital, Latur,
R/o Latur, Dist.Latur. Petitioner
Versus
1 The State of Maharashtra,
through its Secretary,
Social Welfare Department,
Mantralaya, Mumbai-32.
2 The Divisional Caste Certificates
Scrutiny Committee No.2,
Aurangabad Division,
Latur, through its Member Secretary.
3 The Dean,
Government Medical College and
Hospital, Latur. Respondents
Mr.P.G.Rodge, advocate for the petitioner.
Mrs.S.D.Shelke, A.G.P. For Respondents.
CORAM : R.M.BORDE &
S.S.SHINDE, JJ.
Reserved on : 25th September, 2012.
th
Pronounced on:10 October, 2012.
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JUDGMENT (Per R.M.Borde, J.):
1 Rule. Rule made returnable forthwith and heard
finally by consent of learned Counsel for respective parties.
2 Petitioners, in both the petitions, are challenging the
orders passed by Respondent No.2-Committee invalidating their
caste claim on the ground that parents of petitioners are originally
residents of District Bider, which forms part of Karnataka State
and that they have migrated to the State of Maharashtra after
10.08.1950 i.e. after enforcement of Constitution Scheduled Castes
Order, 1950.
3 It is not disputed that parents and forefathers of
petitioners are original residents of District Bider, the geographical
area, which was forming part of erstwhile State of Hyderabad,
before States Re-Organization. The part of District Bider, after re-
organization of States in 1956, has become part of State of
Karnataka. It is also not disputed that petitioners originally belong
to an area which is predominantly a Marathi speaking area, which
presently forms part of State of Karnataka. The State of
Maharashtra has claimed that 865 villages, presently included in
the State of Maharashtra, which comprises of predominantly
Marathi speaking population, shall in fact form part of State of
Maharashtra. The State of Maharashtra has extended benefits to
the residents of disputed 865 villages which presently form part of
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State of Karnataka after reorganization of States in the matter of
education and employment. A Resolution has been passed by the
State of Maharashtra on 25.04.2007 extending opportunity in
employment to the residents of 865 disputed bordering villages in
the cadre of primary teachers/Shikshan Sevaks. The Diploma in
Education awarded by the State of Karnataka i.e. T.C.H. is equated
with D.Ed. qualification recognised in the State of Maharashtra,
thereby extending opportunity of employment to the eligible
candidates from disputed 865 bordering villages.
4 A decision has also been taken by the State of
Maharashtra, which is reflected in Government Resolution dated
10th July, 2008 to permit the residents of 865 bordering villages to
apply for the posts coming within the purview of Maharashtra
Public Service Commission, thus, extending opportunity of
employment to the eligible candidates from disputed villages. The
petitioners are originally residents of village Lakhangaon and
Wanjarkheda, Tq.Bhalki, District Bider, which form part of District
Bider and is included in 865 disputed bordering villages. It is also
not disputed that parents of the petitioners have migrated to the
State of Maharashtra and have settled in the State of
Maharashtra.
5 The petitioner in Writ Petition No.3627/2011 has been
admitted to B.A.M.S. Course against a seat reserved for Scheduled
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Caste category, whereas, petitioner in Writ Petition No.7138/2012
has been appointed as Staff Nurse as against a seat earmarked for
Scheduled Caste category. Petitioners, in both the petitions,
belong to "Mahar", Scheduled Caste, which is recognised in both -
the State of Maharashtra as well as State of Karnataka. The caste
claims of the petitioners have been turned down by Respondent No.
2-Committee mainly on the ground that parents of the petitioners
are original residents of District Bider, which form part of State of
Karnataka and as such, petitioners are not entitled to claim
benefits in the State of migration.
6 The issue arising in the matters is, as to whether the
petitioners, who are belonging to "Mahar" - Scheduled Caste, which
stands recognised in both - the State of Maharashtra as well as
State of Karnataka, having their origin in the region Bider district,
a part of which, on States' reorganization, has come to State of
Maharashtra, whereas, part is included in the State of Karnataka,
are entitled to claim benefits of reservation. The issue is no more
res integra in view of decision of the Supreme Court in the matter
of Sudhakar Vitthal Vs. State of Maharashtra, reported in 2004
(4) Mh.L.J. 784, as well as two decisions of the Division Bench of
this Court in the matter of Santosh Padoti Vs. Caste Scrutiny
Committee, reported in 2006 (Supp.), Bom.C.R. 797; and in the
matter of Hitesh Dasiram Murkute Vs. State of Maharashtra &
others, reported in 2007 (4) Bom.C.R. 784. In the matter of
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Sudhakar Vitthal Kumbhare, petitioner before the Apex Court
was originally resident of village Pandhurna, District Chhindwara
in Madhya Pradesh. After reorganization of States, the part of
District Chandrapur, which was originally in the State of Madhya
Pradesh, has become part of State of Maharashtra. The tribe
'Halba', to which petitioner before the Supreme Court belongs, is
recognized as scheduled tribe in both - the State of Maharashtra
as well as State of Madhya Pradesh. The tribe claim of the
petitioner therein was not forwarded to the Scrutiny Committee on
the ground that he belongs to a region which forms part of State of
Madhya Pradesh and in view of the decision in the matter of
Action Committee On the Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra Vs. Union of India, reported in 1994 (5) SCC 244, he
is not entitled to claim benefits in the State of migration. The
Supreme Court, while dealing with the question, has observed in
paragraph 5 of the judgment, thus:
5 .... The question is as to whether the
appellant being a Scheduled Tribe known as
Halba / Halbi which stands recognized both in
the State of Madhya Pradesh as well as in the
State of Maharashtra having their origin in the
Chhindwara region, a part of which, on States'
reorganization, has come to State of
Maharashtra, was entitled to the benefit of
reservation ? It is one thing to say that the
expression "in relation to that State" occurring
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in Article 342 of the Constitution of India
should be given as effective or proper meaning
so as to exclude the possibility that a tribe
which has been included as a Scheduled Tribe
in one State after consultation with the
Governor for the purpose of the Constitution
may not get the same benefit in other State
whose Governor has not been consulted; but it
is another thing to say that when an area
dominated by members of the same tribe
belonging to the same region which has been
bifurcated, the members would not continue to
get the same benefit when the said tribe is
recognized in both the States. In other words,
the question that is required to be posed and
answered would be as to whether the members
of the Scheduled Tribe belonging to one region
would continue to get the same benefits despite
bifurcation thereof in terms of States'
Reorganization Act. With a view to find out as
to whether any particular area of the country
was required to be given protection is a matter
which requires detailed investigation having
regard to the fact that both Pandhurna in the
District of Chhindwara and the part of area of
Chandrapur at one point of time belonged to
the same region and under the Constitutional
Scheduled Tribes Order, 1950 as it originally
stood the Tribe Halba / Halbi of that region
may be given the same protection. 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
reorganization 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."
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7 In the matter of Santosh Padoti Vs. Caste Scrutiny
Committee (cited supra), the petitioner, who belongs to 'Gond'
tribe, was permanent resident of Charbhata, District Rajnandgaon,
Madhya Pradesh and shifted and settled at Totladoh in State of
Maharashtra. His tribe claim was turned down on the ground
that he is not entitled to claim concessions of 'Gond'- scheduled
tribe. Relying on the judgment in the matter of Sudhakar Vitthal
(cited supra), the Division Bench of this Court directed the
Scrutiny Committee to consider claim of the petitioner. It was also
found by the Division Bench that by virtue of Constitutional
Scheduled Tribe Order 1950, tribe 'Gond' has been considered as
scheduled tribe in both the States i.e. State of Maharashtra as well
as State of Madhya Pradesh and as such, petitioner, in the petition
before the Division Bench, was held entitled to claim benefits
accruable to 'Gond' Scheduled Tribe.
8 In the instant matter also, 'Mahar' Scheduled Caste is
recognized in both the States. The degree of disadvantages of
various elements which constitute the input for specification may
not be totally different and both the States, after reorganization,
have agreed for inclusion of 'Mahar' Scheduled Caste having regard
to the said fact. Petitioners, therefore, who belong to scheduled
caste, which is recognized in both the States and hail from a region
which form part of erstwhile Hyderabad State, a part of which is
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presently included in the State of Maharashtra, are entitled to
claim benefits of reservation in the State of migration i.e. in the
State of Maharashtra.
9 Reliance can be placed on the judgment of the Division
Bench in the matter of Hitesh Dasiram Murkute Vs. State of
Maharashtra & others, reported in 2007 (4) Bom.C.R. 784. The
petitioner, in the reported matter, was a student of Engineering
and belong to 'Kalar' - Other Backward Class and the Scrutiny
Committee refused to examine his claim since he was a migrant.
In the reported matter, petitioner's family is original resident of
Madhya Pradesh and since he could not produce proof of residence
in the State of Maharashtra prior to 1950, the Committee refused
to decide his caste claim in the light of Government Resolutions
dated 24.08.1995 and 21.08.1996. The Division Bench, while
dealing with the issue, has considered the judgment in the matter
of Sudhakar Vitthal (cited supra), so also the judgment of the
Supreme Court in the matter of Marri Chandra Vs. Dean, S.G.S.
Medical College, (1990) SCC 130, Action Committee On the
Issue of Caste Certificate to Scheduled Castes and Scheduled
Tribes in the State of Maharashtra Vs. Union of India, reported
in 1994 (5) SCC 244, and the Division Bench judgment in the
matter of Bankimchandra Vs. State of Maharashtra, reported in
2006 (Supp.) Bom.C.R. 797, and has arrived at following
conclusions:
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"Conclusions:
41 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.
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(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 get 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
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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 explaning and
following the ratio in Marrie 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) Sections 26 and 27 of the Bombay State
Reorganization Act merely amend the schedule
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.
(x) As held by the Apex Court in Sudhakar
Vs. State, if a migrant belonged to a community
which was recognised as scheduled caste or
scheduled tribe in any locality which has been
divided upon reorganization of States and his
caste is recognised as Scheduled
Caste/Scheduled Tribe even in such newly
formed States, the migrant would be entitled to
benefit of reservation even in the State in which
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part of the locality other than his place of origin
has gone."
10 In view of judgment of the Supreme Court in
Sudhakar's case, a migrant belonging to a community which was
recognised as Scheduled Caste or Scheduled Tribe in any locality,
which has been divided upon reorganization of States, the migrant
would be entitled to the benefits of reservation even in the State, in
which part of locality other than his place of origin, has been
included.
11 In the instant matter, parents of the petitioners
originally belong to Bider district. The part of the locality, to which
petitioners belong, has been included in District Bider, which is
presently included in the State of Karnataka, was part of erstwhile
State of Hyderabad. The part of State of Hyderabad comprising of
Marathwada region has been included in the State of Maharashtra
after reorganization. The locality, to which petitioners originally
belong, is predominantly Marathi speaking locality which forms
part of bordering region of State of Karnataka. The State of
Maharashtra has put forth claim in respect of 865 disputed
villages which presently forms part of State of Karnataka. Not only
this, the State of Maharashtra has extended benefits to the
residents of those bordering villages in the matter of education and
employment in the State of Maharashtra.
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12 In this view of the matter and considering the legal
position emerging from the judgment of the Apex Court in the
matter of Sudhakar (cited supra), we are of the considered opinion
that Respondent No.2-Committee had fallen in error in invalidating
caste claims of the petitioners only on the ground that original
place of residence of parents of the petitioners presently forms
part of State of Karnataka. Both the petitions, therefore, deserves
to be allowed.
Both the Writ Petitions are allowed. Impugned
orders passed by Respondent No.2-Scrutiny Committee
are quashed and set aside and the matters are remitted
back to Respondent No.2-Committee for reconsideration.
Respondent No.2-Committee shall decide caste
claims of respective petitioners considering evidence placed before
the Committee and after extending opportunity of
hearing to the petitioners for putting forth their contentions afresh,
in accordance with provisions of law. The caste
claims of the petitioners shall not be rejected only
on the ground that parents of petitioners originally belong
to a region which presently forms part of State of Karnataka, since
the aforesaid region, prior to States reorganization was forming
part of State of Hyderabad, part of the locality of said District
presently forms part of State of Maharashtra. Until decision by
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Respondent No.2-Committee in respect of validation of caste claim
of petitioners, no adverse action shall be taken against them.
14 Rule is accordingly made absolute. There shall be no
order as to costs.
S.S.SHINDE
ig R.M.BORDE
JUDGE JUDGE
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