Bombay High Court
Deepa Narayan Baiswal vs The State Of Maharashtra And ... on 8 June, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1367 OF 2016
Deepa Narayan Baiswal
age: 39 years, occu: service,
R/o Gunjal Colony, Khadka Road,
Bhusawal, Tq. Bhusawal,
District: Jalgaon Petitioner
Versus
1
The State of Maharashtra
Through its Secretary,
Home Department,
Mantralaya, Mumbai - 400 032
2 The Collector, Jalgaon
Tq. & Dist. Jalgaon
3 The Superintendent of Police
Jalgaon, Dist. Jalgaon
4 The Divisional Caste Certificate
Scrutiny Committee, Dhule
Tq. & Dist. Dhule
through Its Member Respondents
Mr.Shailesh P. Brahme advocate for the petitioner
Mr.V.M. Kagne, Assistant Government Pleader for Respondents
_______________
CORAM : R.M. BORDE &
A.I.S. CHEEMA, JJ
Reserved on: 14.2.2016.
Pronounced on:8.6.2016
::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:42:47 :::
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JUDGMENT
(Per: R.M. Borde, J)
1 The petitioner is objecting to the Judgment & Order passed
by the Scrutiny Committee on 7.7.2015, directing invalidation of
the caste claim of the petitioner.
2 The petitioner claims to belong to Kori caste, which is
recognized as a scheduled caste (ST), in the State of Maharashtra
as well as the State of Madhya Pradesh. The father of the
petitioner has migrated from the State of Madhya Pradesh (MP) to
the State of Maharashtra for securing employment with M.S.E.B.
in the year 1966 and since then their family is residing in the
State of Maharashtra. The petitioner was born at Rau Tq. & Dist.
Indore, M.P. on 3.11.1976. It is stated that, her mother belongs to
the State of M.P. and had been to the said place only for the
purpose of delivery. The petitioner resides with her father and
completed her school and fuhrer education and also secured
employment in the State of Maharashtra. The petitioner has been
issued a caste certificate by the Sub-Divisional Officer,
Khandva, M.P.. The petitioner also has secured a certificate from
the Sub-Divisional Officer, Bhusaval, which was forwarded to the
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scrutiny committee for verification.
3 In response to the advertisement issued by respondent
No.2, the petitioner has undergone selection process and has
been selected for the post of clerk from amongst ST category.
Since the petitioner did not possess a validation certificate, she
was not issued letter of appointment. As such, she approached
Maharashtra Administrative
ig Tribunal by presenting Original
Application bearing No.549/2011, which came to be dismissed.
Being aggrieved by the order passed by the Maharashtra
Administrative Tribunal, petitioner approached this Court, seeking
direction in respect of employment. This Court allowed the
petition and directed the Collector to issue provisional letter of
appointment, subject to validation of the caste certificate issued
to her. The petitioner was appointed as a junior clerk by order
dated 24.2.2014 and the caste certificate issued to her was
referred to the scrutiny committee for verification, as directed by
this Court in Writ Petition No.3722/2015. The scrutiny committee,
after considering the contentions of the petitioner, passed an
order on 7.7.2015 and directed invalidation of the caste certificate
issued to the petitioner.
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4 The scrutiny committee has refused to issue validation
certificate to the petitioner, mainly for the reason that, her father
had migrated to the State of Maharashtra, after reorganization of
the States. The petitioner was born in the State of Madhya
Pradesh. Since the family has migrated after the reorganization of
States, from the State of M.P., the scrutiny committee, applying
the ratio laid down in the matter of Marri Chandra Vs. Dean,
S.G.S. Medical College came to the conclusion that, the
petitioner would be entitled to claim benefits only in the State of
origin and not in the state of migration. A reference is also made
to the Judgment of full bench of this Court in case of Shweta
Shantalal Lal V/s State of Maharashtra and others
(reported in 2010 (2) Mh. L.J. Page 904).
5 We have heard learned counsel appearing for the petitioner
as well as the learned Assistant Government Pleader appearing
for the State.
6 The facts giving rise to the controversy are not disputed. It
is not a matter of dispute that, the father of the petitioner had
migrated from the State of Madhya Pradesh and started residing
in the State of Maharashtra since 1966 i.e. after reorganization of
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the States. The issue raised is clearly concluded by the Judgment
of Marri Chandra Vs. Dean, S.G.S. Medical College (1990
SCC 130). The petitioner, in the matter of Marri Chandra was born
in the state of Andhra Pradesh. He belonged to Gauda community,
which is also known as Goudi. The father of the petitioner
obtained a ST certificate from Tahsildar and on that basis secured
employment from amongst ST category in a Government of India
Undertaking and was
ig posted in Bombay in the State of
Maharashtra. The petitioner also was residing with his father in
Bombay since the age of nine years. After passing 12th standard
examination of Higher Secondary and Secondary school Board
examinations, the petitioner submitted application for admission
to the Medical College from amongst the ST reserve category.
However, he was denied admission and a candidate securing
lessor marks was admitted to the course. Denial of the admission
was based on the Circular issued by the Ministry of Home Affairs
which inter alia records that a SC/ST candidate 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 SC/ST
candidate of the State of his origin and will be entitled to derive
benefits from the State of Origin and not in the State to which he
has migrated.
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7 The question that arose in the matter of Marri
Chandrasshekhar Rao V/s Dean, G.S. Medical College (1990) 3
SCC 130 was as to whether a person who is recognized as a
member of SC/ST in the state of Origin can claim benefits or
privileges or rights in the State of migration where he goes. While
dismissing the petition, the Supreme Court has observed in para
No.10 of the Judgment as below:-
" 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 a 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 a 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
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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 area. 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. . . . . . . . ."
8 In para No.13 of the Judgment, the Apex Court has
observed:-
" 13. . . . . . .
..........
. . . . . . . . . . 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 of Maharashtra where
this inhibition or this disadvantage is not there, then he
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cannot be said to have that reservation which will
denude the children or that people of Maharashtra
belonging to any segment of that State who may still
require that protection. . . . . .. . . "
9 It is thus clear that a migrant belonging to SC or ST who
has migrated from the State of Origin to some other State for
seeking education or employment will be deemed to be SC or ST
of the State of Origin and will be entitled to derive benefits from
the State of Origin and not in the State of migration. The father of
the petitioner has migrated to the State of Maharashtra after
reorganization of the States i.e. after 1950 and as such, the
petitioner would be entitled to get benefits in the State of origin of
her father and not in the State of migration i.e. the State of
Maharashtra.
10 In the matter of Shweta Shantalal Lal V/s State of
Maharashtra and others (2010 (2) Bom.C.R. 497), the issue
referred to the full bench is, as to whether a person who was not
ordinary resident, as on the date of presidential notification in
area, now constitutes State of Maharashtra, will be entitled to
benefit of reservation in the State. The Division Bench observed in
the Judgment that, the law as to whether a migrant belonging to
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SC/ST is entitled to benefits of reservation in the State of
Maharashtra, considering the constitutional bench Judgment of
the Honourable Supreme Court in Mari Chandrasshekhar Rao V/s
Dean, G.S. Medical College (1990 3 SCC 130) and the Judgment
of another constitutional bench, in the matter of Action Committee
(State of Maharashtra and another Vs. Union of India and anr.
Reported in 1994 (5) SCC 244) may no longer be res integra.
The Honourable Supreme Court, after analyzing the various
Judgments concluded that in case of migrant belonging to SC, not
ordinarily resident as on 10.3.1950 in the area that now
constitutes the State of Maharashtra and in a case of ST,
considering Rule 5, on 6.9.1950, would not be entitled to benefits
of reservation as SC/ST in the State of Maharashtra. They and
their progeny will continue to get the benefits of reservation in the
State of origin.
11 In view of the Judgment of the full bench referred to above
as well as the Judgment of Honourable Supreme court in the
matter of Mari Chandrasshekhar Rao V/s Dean, G.S. Medical
College (1990 3 SCC 130), the decision rendered by the scrutiny
committee directing invalidation of the caste certificate issued to
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the petitioner, does not appear to be erroneous.
In the result, the petition fails and as such stands
dismissed.
(A.I.S.CHEEMA, J) (R.M.BORDE, J)
vbd
