Jharkhand High Court
Asha Kumari vs The State Of Jharkhand on 4 January, 2024
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5577 of 2019
Asha Kumari ..... Petitioner
Versus
1. The State of Jharkhand, through the Secretary, School Education and Literacy
Department, Ranchi
2. The Secretary, Department of Personnel, Administrative Reforms and Raj
Bhasa, Government of Jharkhand, Ranchi
3. Jharkhand Staff Selection Commission, through its Secretary, Ranchi
4. The Controller of Examination, Jharkhand Staff Selection Commission, Ranchi
..... Respondents
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CORAM
HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner: Mr. Arviind Kr. Choudhary
For the State: Mr. P. C. Sinha, A.C to G.A-III
For the JSSC: Mr. Sanjay Piprawall
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06/04.01.2024 The present writ petition has been filed for declaring the petitioner to
have passed in the Combined Graduate Trained Teacher Competitive
Examination, 2016 (Advertisement No. 21/2016) for appointment on the post of
Teacher (Hindi) in Deoghar district as after being declared successful in the
'Main' examination, she was called for certificate verification, however, her
candidature in the Backward Class-II category was rejected on the ground that
she had submitted the caste certificate of the said category on the basis of her
husband's caste. Further prayer has been made for quashing the remarks
mentioned against the name of the petitioner in important notice No. 3571
dated 06.06.2019 (Annexure-5 to the writ petition) wherein it has been
mentioned that she failed to submit the valid caste certificate in support of
claiming reservation under BC-II category and hence her candidature would be
restricted up to the vacancy of unreserved category. The petitioner has also
prayed for directing the respondent Nos. 4 to 6 to send her name to the
respondent No.2 for counselling being a successful candidate in the Backward
Class-II category.
2. Learned counsel for the petitioner submits that the state of origin of the
petitioner is State of Bihar and she belongs to 'Baniya (Agrahari Vaishya)' caste.
The petitioner solemnized marriage with a person, who is the resident of State
of Jharkhand and also belongs to the same caste. After marriage, the petitioner
applied for issuance of caste certificate of Backward Class-II category and local
resident certificate before the competent authority of State of Jharkhand giving
details of her husband in pursuance of which the Sub-Divisional Officer,
Deoghar issued residential certificate as well as caste certificate to her on
24.03.2017/25.03.2017.
3. It is further submitted that in the year 2016, the Jharkhand Staff
Selection Commission (JSSC) issued advertisement for the Combined Graduate
Trained Teacher Competitive Examination, 2016 in which the petitioner applied
for 'Hindi' Teacher in Deoghar district under Backward Class-II category. The
petitioner passed the said examination and thereafter was called for document
verification whereupon she appeared and produced all the required certificates.
However, a show cause notice dated 25.09.2018 was issued to her whereby she
was asked to file valid caste certificate till 03.10.2018 as she had submitted
caste certificate of Backward Class-II category issued on the basis of
genealogical table of her husband. Thereafter, the petitioner submitted a fresh
caste certificate issued by the Sub-Divisional Officer, Patna (Bihar) dated
27.09.2018 on the basis of her parents' details, however, important notice No.
3571 dated 06.06.2019 was issued by the office of the Jharkhand Staff Selection
Commission in which it was mentioned that the petitioner failed to submit valid
caste certificate for extending the benefit of reservation under BC-II category
and therefore her candidature would be restricted to the vacancy of unreserved
category. It is also submitted that the Deputy Commissioner, Deoghar had
already started counselling of the candidates whose names appeared in the final
list, however, the name of the petitioner was not sent for counselling.
4. Learned counsel for the respondent-JSSC submits that the issue raised in
the present writ petition is no more res integra as in the case of Marri
Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College & Others
reported in (1990) 3 SCC 130, the Constitution Bench of the Hon'ble Supreme
Court has held as under:-
"13. It is trite knowledge that the statutory and constitutional
provisions should be interpreted broadly and harmoniously. It
is trite saying that where there is conflict between two
provisions, these should be so interpreted as to give effect to
both. Nothing is surplus in a Constitution and no part should
be made nugatory. This is well settled. See the observations of
this Court in Venkataramana Devaru v. State of Mysore [1958
SCR 895, 918] , where Venkatarama Aiyer, J. reiterated that
the rule of construction is well settled and where there are in
an enactment two provisions which cannot be reconciled with
each other, these should be so interpreted that, if possible,
effect could be given to both. It, however, appears to us that
the expression 'for the purposes of this Constitution' in Article
341 as well as in Article 342 do imply that the Scheduled Caste
and the Scheduled Tribes so specified would be entitled to
enjoy all the constitutional rights that are enjoyable by all the
citizens as such. Constitutional right, e.g., it has been argued
that right to migration or right to move from one part to
another is a right given to all -- to Scheduled Castes or Tribes
and to non-scheduled castes or tribes. But when a Scheduled
Caste or Tribe migrates, there is no inhibition in migrating but
when he migrates, he does not and cannot carry any special
rights or privileges attributed to him or granted to him in the
original State specified for that State or area or part thereof. If
that right is not given in the migrated State it does not
interfere with his constitutional right of equality or of
migration or of carrying on his trade, business or profession.
Neither Article 14, 16, 19 nor Article 21 is denuded by
migration but he must enjoy those rights in accordance with
the law if they are otherwise followed in the place where he
migrates. There should be harmonious construction,
harmonious in the sense that both parts or all parts of a
constitutional provision should be so read that one part does
not become nugatory to the other or denuded to the other but
all parts must be read in the context in which these are used.
It was contended that the only way in which the fundamental
rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e)
and 19(1)(f) could be given effect to is by construing Article
342 in a manner by which a member of a Scheduled Tribe gets
the benefit of that status for the purposes of the Constitution
throughout the territory of India. 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."
5. In the case of Action Committee on Issue of Caste Certificate
to SCs/STs in the State of Maharashtra & Another Vs. Union of India
& Another reported in (1994) 5 SCC 244, the Constitution Bench of the
Hon'ble Supreme Court has further held 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."
6. Relying on the aforesaid Constitution Bench judgments, the Hon'ble
Supreme Court in the case of Ranjana Kumari Vs. State of Uttarakhand &
Ors., reported in (2019) 15 SCC 664, has reiterated that merely because in
the migrant State, the same caste is recognized as 'Scheduled Caste', the
migrant cannot be treated as a member of 'Scheduled Caste' of the migrant
State. The relevant part of the said judgment is quoted hereunder:-
"9. It would thus be evident that in the aforesaid case also, the
appellant, who belonged to Valmiki caste (Scheduled Caste) of
the State of Punjab, married to a person belonging to Valmiki
caste of Uttarakhand State and migrated to that State.
Irrespective of the fact that in the State of Uttarakhand,
Valmiki caste is also recognized as Scheduled Caste, she was
not made entitled to get the benefit of reservation of Valmiki
caste in the State of Uttarakhand and the said appeal was
accordingly dismissed by the Hon'ble Supreme Court."
7. This Court had also an occasion to deal with the similar issue in the case
of Pramila Orain Vs. The State of Jharkhand & Others [W.P.(C) No. 4110
of 2022] wherein the petitioner, who was belonging to 'Oraon' community, had
migrated from the State of Chhatisgarh to the State of Jharkhand after
solemnizing her marriage and was claiming benefit of reservation in the State of
Jharkhand stating that the tribe namely 'Oraon' is also considered as 'Scheduled
Tribe' in the State of Jharkhand. This Court dismissed the writ petition in the
light of the ratio laid down by the Hon'ble Supreme Court in the case of
Ranjana Kumari (Supra), Marri Chandra Shekhar Rao (Supra) and
Action Committee on Issue of Caste Certificate to SCs/STs in the State
of Maharashtra (Supra).
8. Recently, in the case of Kanchan Kumari & Anr. Vs. State of
Jharkhand & Ors. [W.P.(S) No. 1943/2019], which was also related to the
said examination, it has been held by this Court as under:-
"19. Thus, the issue is no more res integra that a person,
who has migrated to the other State, shall get benefit of
reservation only in his/her parent State i.e., the State of
origin and not in the migrant State, even though the caste
of that person is being given the benefit of reservation in
the migrant State."
9. In the present case also, the admitted fact is that the state of origin of
the petitioner is State of Bihar and she migrated to State of Jharkhand after her
marriage. The petitioner obtained caste certificate from the office of the Sub-
Divisional Officer, Deoghar by giving the address of her husband as her place of
residence. This Court is of the view that on mere ground that caste certificate of
the petitioner for Backward Class-II category has been issued by the Sub-
Divisional Officer, Deoghar, she cannot claim benefit of reservation in the State
of Jharkhand in view of the settled position of law that a person, who has
migrated to the other State, shall get benefit of reservation only in the State of
origin.
10. Since the issue raised in the present writ petition has already been set at
rest, this Court is of the view that the prayers made in the present writ petition
deserve to be dismissed.
11. The present writ petition is accordingly dismissed.
Satish/A.F.R (RAJESH SHANKAR, J)
