Himachal Pradesh High Court
Priyanka vs Dean on 7 November, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 7th DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
Between:-
r to
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
NO. 2309 OF 2020
PRIYANKA W/O SH. NAIN
SINGH, R/O VPO BIKRAMBAG,
TEHSIL NAHAN, DISTRICT
SIRMOUR, H.P.
....PETITIONER
(BY SH. TEJINDER SINGH,
ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY
EDUCATION TO THE
GOVERNMENT OF HIMACHAL
PRADESH.
2. DIRECTOR, ELEMENTARY
EDUCATION, HIMACHAL
PRADESH, SHIMLA.
3. DEPUTY DIRECTOR,
ELEMENTARY EDUCATION,
DISTRICT SIRMOUR AT NAHAN.
....RESPONDENTS
(SH. ASHOK SHARMA, A.G.
WITH SH. KUNAL THAKUR, MS.
DIVYA SOOD, DY. A.GS. AND SH.
::: Downloaded on - 10/11/2022 20:30:46 :::CIS
2
RAJAT CHAUHAN, LAW OFFICER,
FOR RESPONDENTS-STATE).
.
This Petition coming on for orders this day, the Hon'ble Mr.
Justice Tarlok Singh Chauhan, passed the following:-
ORDER
The petitioner by birth belongs to Other Backward
Class Community (for short 'OBC Community') in the State of
Haryana and was married to one Nain Singh, who also belongs to
the Gujjar caste. The caste of the petitioner, before and after
marriage, remained same i.e. Gujjar. Gujjar Community is
recognised as Scheduled Tribes (for short 'ST') in the State of
Himachal Pradesh, whereas in the State of birth of the petitioner
i.e. Haryana, it is recognised as OBC Community.
2. The petitioner applied for the post of Language
Teacher (ST), for batch-wise recruitment, however, the same was
refused vide order dated 10.03.2017 on the ground that the
petitioner was not scheduled Tribes, so as to accord the benefit
of reservation as sought for by the petitioner.
3. Thus, essentially, the moot question that arises for
consideration is whether by migration or some reasons from one
State to another, can a person, who may be belonging to
Scheduled Castes, Scheduled Tribes or OBC can claim the benefit
of such status in the migratory State.
4. The issue is no longer res integra and had been
considered and decided by the Hon'ble Constitutional Bench of
.
the Hon'ble Supreme Court in Marri Chandra vs. Dean, S.G.S.
Medical College and others (1990) 3 SCC 130, wherein it
was categorically held that the migration for whatsoever reason
from one state to another cannot be a sufficient ground for
claiming the benefit of SC, ST and OBC in the migratory State.
The objective criteria for declaration of a particular Caste or Tribe
as SC/ST/OBC in one State is the specific level of backwardness,
social disparage and economic disadvantages prevalent in such
state. Though, one Caste notified as Scheduled Caste/ Tribe/ OBC
in one State may also find place in the list of notified Scheduled
Caste/ Tribe/OBC in the other, but the same has not been held to
be sufficient for claiming the benefit in other State by a person
after migration even through marriage.
5. This has been the consistent view of the Hon'ble
Supreme Court as would be evident from the judgment of the
Hon'ble Constitutional Bench of the Hon'ble Supreme Court in
Dr. Jaishri Laxman Rao Patil vs. Chief Minister and others
(2021) 8 SCC 1.
6. In a very recent judgment of the Hon'ble Supreme
Court in Bhadar Ram (deceased) through legal
representatives vs. Jassa am and others (2022) 4 SCC
259, while reiterating the ratio laid down in Marri Chandra's
case (supra), has observed as under:-
.
10. Whether the appellant herein - original defendant -
purchaser of the land in question, situated in the State of
Rajasthan, can be said to be an ordinarily resident of State
of Rajasthan, it is to be noted that in bainama, his address
is shown as Village Burajwala, Tehsil Fajilka, District
Firozpur, Punjab. In the mutation record also, his address
is shown as that of Punjab. In the cross examination, he
has admitted that he was a resident of Punjab. However,
according to the appellant - original plaintiff, as his
grandfather and father had purchased the lands in the
State of Rajasthan, he can be said to be an ordinarily
resident of State of Rajasthan. The aforesaid cannot be
accepted. Merely because his grandfather and father had
purchased the agricultural lands in the State of Rajasthan,
the appellant cannot be said to be an ordinarily resident
of Rajasthan.
11. 'Ordinarily Resident' has been defined under the
Representation of the People Act, 1950. As per Section
20(1) of the Representation of the People Act, 1950,
'ordinarily resident' means a person shall not be deemed
to be ordinarily resident in a constituency on the ground
only that he owns, or is in possession of, a dwelling house
therein. Considering the documentary evidences referred
to hereinabove, it cannot be said that the appellant -
original defendant is an ordinarily /permanent resident of
State of Rajasthan.
12. Now whether the sale transaction in favour of the
appellant original defendant can be said to be in violation
of Section 42 of the Rajasthan Tenancy Act, 1955 is
concerned, it is to be noted that as per Section 42 of the
Rajasthan Tenancy Act, 1955, there is a restriction on sale,
gift or bequest by a member of Scheduled Caste in favour
.
of a person, who is not a member of Scheduled Caste.
Looking to the object and purpose of such a provision, it
can be said that the said provision is to protect a member
of the Scheduled Caste belonging to the very State he
belongs i.e., in the present case the State of Rajasthan.
Being a Scheduled Caste in the State of Punjab whether
the sale transaction in favour of the appellant original
defendant could have been saved from the bar under
Section 42 of the Rajasthan Tenancy Act, 1955 is now not
res integra.
13. In the case of Marri Chandra Shekar Rao (supra) in
paragraph 10 it is observed and held as under:
"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 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
rcontroversy in the instant case does not become
difficult."
14. While holding so, it is observed in the aforesaid
decision that the Scheduled Castes and Scheduled Tribes
in some States had to suffer the social disadvantages and
did not have the facilities for development and growth,
and therefore, in order to make them equal in those areas
where they have so suffered and are in the state of
underdevelopment, to have reservations or protection in
their favour so that they can compete on equal terms with
the more advantageous or developed sections of the
community, a particular caste who has suffered more in a
particular State might be given reservations or protection
in their favour. It is also observed that social condition of a
State varies from State to State and it will not be proper
to generalize any Caste or any Tribe as a Scheduled Caste
or Scheduled Tribe for the whole country.
15. In the case of Action Committee on Issue of Caste
Certificate to Scheduled Castes and Scheduled Tribes in
the State of Maharashtra and Another (supra) after
considering the decision of this Court in the case of Marri
Chandra Shekar Rao (supra) the question arose, Whether
.
a person belonging to caste or tribe specified for the
purpose of Constitution to be 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 Constitution to be a
Scheduled Caste or Scheduled Tribe in relation to that
State B, will that person be entitled to claim the privileges
and benefits admissible to persons belonging to
Scheduled Caste and /or Scheduled Tribe in State B?
Holding that a person belonging to Scheduled Caste
/Scheduled Tribe in relation to his original State of which
he is permanent or an ordinarily resident cannot be
deemed to be so in relation to any other State on his
migration to that State for the purpose of employment,
education etc.
16. In paragraph Nos.3 and 16 it is observed and held as
under:
"3. On a plain reading of clause (1) of Articles 341 and
342 it is manifest that the power of the President is
limited to specifying the castes or tribes which shall, for
the purposes of the Constitution, be deemed to be
Scheduled Castes or Scheduled Tribes in relation to a
State or a Union Territory, as the case may be. Once a
notification is issued under clause (1) of Articles 341
and 342 of the Constitution, Parliament can by law
include in or exclude from the list of Scheduled Castes
or Scheduled Tribes, specified in the notification, any
caste or tribe but save for that limited purpose the
notification issued under clause (1), shall not be varied
by any subsequent notification. What is important to
notice is that the castes or tribes have to be specified in
relation to a given State or Union Territory. That means a
given caste or tribe can be a Scheduled Caste or a
.
Scheduled Tribe in relation to the State or Union
Territory for which it is specified. These are the relevant
provisions with which we shall be concerned while
dealing with the grievance made in this petition."
"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
r 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."
17. The decision of this Court in the case of Action
Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of Maharashtra
and Another (supra) shall be applicable with full force to
the facts of the present case also. The submission on
behalf of the appellant original defendant that the said
decision shall not be applicable to the facts of the case on
hand as in that case the Court was considering the issue
with respect to employment, education and in the present
case dispute is with respect to sale /sale of property has
.
no substance and cannot be accepted.
18. The reasoning given by this Court in the case of
Action Committee on Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra and Another (supra) are on interpretation
and on a plain reading of Clause I of Articles 341 and 342
of the Constitution of India, which are referred to
hereinabove. We see no reason to restrict the applicability
of the decision of this Court in the case of Action
Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of Maharashtra
and Another (supra) only with respect to employment,
education or the like and not to make applicable the same
with respect to purchase and sale of the property in case
of sale and purchase of the land belonging to a Scheduled
Caste person in the State of Rajasthan and when the said
land was allotted to the original land owner - Chunilal as
Scheduled Caste landless person.
19. At this stage, it is required to be noted that in the
subsequent decision in the case of Ranjana Kumari
(supra), a Three Judge Bench of this Court had an
occasion to consider the same issue. Before this Court the
appellant belonged to Valmiki Caste (Scheduled Caste of
the State of Punjab), who married a person belonging to
Valmiki Caste of Uttarakhand migrated to that State. It
was found that in the State of Uttarakhand also under the
Presidential order 'Valmiki' was also recognized as notified
Scheduled Caste. Even the State of Uttarakhand also
issued a certificate to the appellant. However, the State of
Uttarakhand denied the benefit, which may be available
to the Scheduled Caste belonging to State of Uttarakhand.
Thereafter the appellant approached the High Court. The
High Court rejected the claim. The decision of the High
.
Court was carried before this Court. While dismissing the
Appeal, it is observed in paragraph 4 as under:
"4. Two Constitution Bench judgments of this Court in
Marri Chandra Shekar Rao Vs. Dean, Seth G.S. Medical
College & Ors. and Action Committee on Issue of Caste
Certificate to Scheduled Castes & Scheduled Tribes in
the State of Maharashtra & Anr. Vs. Union of India &
Anr. have taken the view that merely because in the
migrant State the same caste is recognized as
Scheduled Caste, the migrant cannot be recognized as
Scheduled Caste of the migrant State. The issuance of
a caste certificate by the State of Uttarakhand, as in
the present case, cannot dilute the rigours of the
Constitution Bench Judgments in Marri Chandra Shekar
Rao (supra) and Action Committee (supra)."
20. In view of the above, the appellant - original
defendant being a Scheduled Caste belonging to State of
Punjab and being an ordinarily and permanent resident of
the State of Punjab cannot claim the benefit of a
Scheduled Caste in the State of Rajasthan for the purpose
of purchase of the land belonging to a Scheduled Caste
person of State of Rajasthan, which was given to original
allottee as Scheduled Caste landless person, and
therefore, as rightly held by the Division Bench of the High
Court, the sale transaction in favour of the appellant -
original defendant was in clear breach and / or in violation
of Section 42 of the Rajasthan Tenancy Act, 1955.
7. Similar reiteration of law can be found in a detailed
judgment rendered by a Coordinate Bench of this Court in CWP
No. 8043 of 2021, titled as Subeena Sabri vs. State of H.P.
& Ors., decided on 19.05.2022.
.
8. In view of the aforesaid reasons, we do not find any
merit in this petition and the same is accordingly dismissed.
Pending applications, if any, also stand disposed of.
(Tarlok Singh Chauhan)
Judge
(Virender Singh)
th
7 November, 2022 Judge
