Jharkhand High Court
Singo Soren vs The State Of Jharkhand on 9 September, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(C) No. 28 of 2023
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Singo Soren, wife of Sawana Soren age about 44 years, resident of village
Kadko, P.O. Gobindpur, P.s. Rajnagar, District-Seraikella-Kharsawan,
Jharkhand
..... Petitioner
-- Versus --
1. The State of Jharkhand
2. The Chief Secretary, Government of Jharkhand
3. The Principal Secretary, Home Department, Government of Jharkhand,
At Project Buiilding, P.O. and P.S. Seraikella-Kharsawan
4. The Deputy Commissioner, Seraikella Kharsawan, AT+P.O.
+P.S.+Seraikella-Kharsawan
5. The Circle Officer-cum-Election Officer, Rajnagar At Rajnagar, P.O.
Rajnagar, P.S. Rajnagar, District-Seraikella-Kharsawan
...... Respondents.
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rajesh Kumar Mishra
For the State : Mr. Amitesh Kumar Geasean, A.C. to A.A.G.-IA
10/09.09.2024 :-Heard Mr. Rajesh Kumar Mishra, learned counsel for
the petitioner and Mr. Amitesh Kumar Geasean, learned counsel for
the respondent-State.
2. Prayer in the writ petition is made for quashing the
order dated 05.05.2022 issued under the signature of Election-cum-
(Mukhiya) Circle Officer, Rajnagar whereby the application of the
petitioner has been rejected on the ground that she belongs to
other State.
3. Mr. Rajesh Kumar Misrha, learned counsel for the
petitioner submits that the petitioner belongs to the member of
scheduled tribe and married with the member of scheduled tribe in
the state of Jharkhand and caste certificate issued by competent
authority of the State contained in Annexure -1. He further submits
that on the basis of caste certificate issued by the competent
authority of the state of Jharkhand the petitioner was elected on
the post of Mukhiya of GRAM PANCHAYAT in the year 2010 and
2015 and accordingly the certificate issued by the authority concern
contained in Annexure-2 series. He further submits that the
husband of the petitioner belongs to the member of scheduled tribe
of the state and permanent resident and khatiyani Raiyat of the
village Kadko within the Gobindpur Panchayat. He then submits that
the petitioner filed an application for the post of Mukhiya election
on the year 2022 and an objection application filed by one Durga
Muni Hansda who was also candidate of the same post and after
receiving the objection application a five men committee was
constituted and after observing that the petitioner and her husband
is permanent resident of the said village and also belongs to the
member of schedule tribes the application of the petitioner was
rejected by order dated 05.05.2022 по. 03/2022-23 issued by
Election officer (Mukhiya) Cum CIRCLE Officer Rajnagar contained
in Annexure-3. He submits that the petitioner is entitled to file an
application for Triple stage Aam Election for the village level as her
husband belongs to schedule tribe. He further submits that the
person can not be debarred of the other state who belongs to
member of schedule tribe and married to another state and the
husband of the married women also belongs to member of
schedule tribe of the state concern can be treated as schedule tribe
member. He submits that once the caste certificate is issued by the
state the same can not be changed. He submits that the action of
the respondents are only colorable exercise of power and against
the principle of natural justice.
4. Per contra, Mr. Amitesh Kumar Geasean, learned
counsel for the respondent-State submits that in the identical
situation this Court in "Jigyasha Gupta Vs. The State of
Jharkhand" in W.P.(S) No. 3500 of 2018 by order dated
18.02.2021 decided the issue in question and the same was
dismissed by order dated 18.02.2021 and the said order was
challenged before the Division Bench in L.P.A. No. 119 of 2021 and
the order of the Single Judge was confirmed by the Division Bench
by order dated 28.03.2023.
5. Relying on the above judgment, learned counsel for
the State submits that the identical issue has already been dealt
with by the Hon'ble Supreme Court as such no relief can be
extended to the petitioner.
6. In view of above submissions of the learned counsel
for the parties the Court has gone through the materials on record.
It is an admitted position that petitioner belongs to the member of
scheduled tribe and married with the member of scheduled tribe in
the state of Jharkhand and caste certificate issued by competent
authority of the State. The petitioner is originally resident of State
of Orissa.
7. For determining the status of a person in such a situation,
the Hon'ble Supreme Court has considered in the case of
"Sudhakar Vithal Kunbhare v. State of Maharashtra and
Others" (2004) 9 SCC 481, and "Sau Kusum" V. State of
Maharashtra (2009) 2 SCC 109 arising out of reorganization of
the State and these two judgments have been considered by the
Hon'ble Full Bench of this Court in the case of ""Ranjit Kumar v.
State of Jharkhand and Others" (2020) SCC Online Jhar.
210 at paragraph no.15, which is as under:
"15. Learned counsels have also placed reliance upon
the decision of the Hon'ble Apex Court in Sau Kusum Vs. State of
Maharastra & Ors., reported in (2009) 2 SCC 109, wherein where,
the appellant who was belonging to the Vidarbha area, the border
area of the States of Madhya Pradesh and Maharastra, claimed to
be belonging to the carpenter caste, which was recognized as
Other Backward Class in both the States, was denied to the right
to contest an election for the Member of Panchayat in the State of
Maharastra, on the ground that she was not a resident of
Maharashtra prior to 1967 and her family had migrated from the
State of Madhya Pradesh to the State of Maharastra. In the said
case, it was urged on behalf of the appellant that the principles
laid down in Sudhakar Vithal Kumbhare's case should have been
applied. In the said case, the Hon'ble Apex Court laid down the
law as follows :-
"12. In that view of the matter, if it is a fact
that the people belonging to the said caste are recognised as OBC,
both in Madhya Pradesh and Maharashtra, being badhai in the
former and sutar in the latter and keeping in view of the fact that
the Caste Scrutiny Committee has found her to be belonging to
the sutar caste, we are of the opinion that the matter requires
reconsideration.
13. It may be noticed that the Bombay High
Court also in Hitesh Dasiram Murkute v. State of Maharashtra
opined: "(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 the date of migration but date of inclusion
of caste or tribe in the Schedule."
14. There is nothing on record to show
as to when she had migrated to the State of Maharashtra. If
admittedly she had migrated to the State of Maharashtra before
1967, she would be considered to 40 be a permanent resident of
Maharashtra.
*** *** ***
16. It is one thing to say that she, being not a permanent
resident of the State, would not be entitled to contest any election.
If she is to be conferred the said status, she will be entitled to all
the benefits to which members of the said caste are entitled to but
would also be entitled to other benefits i.e. not the benefit to
contest in the reserved categories of the election of the Panchayat
alone but other benefits as well."
8. Hon'ble the Supreme 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 v. Union of India and Another" reported in
(1994) 5 SCC 244 has considered the communication dated
22.03.1977 of the Government of India considering Articles 341 and
342 of the Constitution of India and discussed at paragraph no.8
and 16, as under:
"8. In course of time persons belonging to
Scheduled Castes/Scheduled Tribes who had migrated from one State
to another in search of employment or for education purposes and
the like, experienced great difficulty in obtaining Caste/Tribe
Certificates from the State from which they had migrated. To remove
this difficulty experienced by them the earlier instructions contained
in the letter of 22-3-1977, and the subsequent letter of 29-3-1982,
were modified, in that, the prescribed authority of a State/Union
Territory was permitted to issue the Scheduled Caste/Scheduled Tribe
Certificate to a person who had migrated from another State on
production of a genuine certificate issued to his father by the
prescribed authority of the State of the father's origin except where
the prescribed authority considered a detailed enquiry necessary
through the State of origin before issue of certificate. It was further
stated that the certificate will be issued irrespective of whether the
Caste/Tribe in question is scheduled or not in relation to the
State/Union Territory to which the person has migrated. Of course,
this facility did not alter the Scheduled Caste/Tribe status of the
person in relation to the one or the other State. The revised form of
the certificate was circulated. Further, it was clarified that a
Scheduled Caste/Tribe person who has migrated from the State of
origin to some other State for the purpose of education, employment,
etc., will be deemed to be Scheduled Caste/Tribe of the State of his
origin only and will be entitled to derive benefits 41 from that State
and not from the State to which he had migrated. By this clarificatory
order forwarded to Chief Secretaries of all States/Union Territories,
the only facility extended was that the prescribed authority of the
State/Union Territory to which a person had migrated was permitted
to issue the certificate to the migrant on production of the genuine
certificate issued to his father by the prescribed authority of the State
of the father's origin provided that the prescribed authority could
always enquire into the matter through the State of origin if he
entertained any doubt. The certificate to be so issued would be in
relation to the State/Union Territory from which the person concerned
had migrated and not in relation to the State/Union Territory to which
he had migrated. Therefore, the migrant would not be entitled to
derive benefits in the State to which he had migrated on the strength
of such a certificate. This was reiterated in a subsequent letter dated
15-10-1987 addressed to Smt Shashi Misra, Secretary, Social Welfare,
etc., in the State of Maharashtra. In paragraph 4 of that letter it was
specifically stated:
"Further, a Scheduled Caste person, who has
migrated from the State of his origin, which is considered to be his
ordinary place of residence after the issue of the first Presidential
Order, 1950, can get benefit from the State of his origin and not from
the State to which he has migrated."
So stating the proposal regarding reduction in the
period of cut-off point of 1950 for migration was spurned. It was
stated that the proposal could have been taken care of only if the
lists of Scheduled Castes and Scheduled Tribes were made on all-
India basis which, it was said, was not feasible in view of the
provisions of Articles 341 and 342 of the Constitution. It will thus, be
seen that so far as the Government of India is concerned, since the
date of issuance of the communication dated 22-3-1977, it has firmly
held the view that a Scheduled Caste/Scheduled Tribe person who
migrates from the State of his origin to another State in search of
employment or for educational purposes or the like, cannot be
treated as a person belonging to the Scheduled Caste/Scheduled
Tribe of the State to which he migrates and hence he cannot claim
benefit as such in the latter State.
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 42 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 43 a Scheduled Tribe in the
State of his origin."
9. Further, in the case of "Sanjeev Kumar and
Another v. State of Bihar and Others" reported in (2016) 13
SCC 105, the Hon'ble Supreme Court has held that the person who
was originally from the State of U.P was not entitled to the benefit
of SC candidate in the State of Bihar. Reference in this regard may
be made to paragraph nos.13 to 15 of the said judgment, which are
quoted below:
"13. It is true that the initial appointment of the
appellants has been found to be legally bad on account of the
reasons set out earlier, yet the prolonged litigation on the subject
has indeed deprived the appellants of the opportunity to seek
employment elsewhere and even to appear in the successive
examinations that have been offered by the Public Service
Commission to eligible candidates for recruitment in the Bihar State
Judicial Service not only in the reserved category but for the general
category candidate like the appellants. The appellants appear to
have laboured under the impression that since they have already
been appointed they would be entitled to defend their appointments
and continue in service. That expectation has not come true in the
light of the Constitution Bench decisions. Be that as it may, we see
no impediment in the appellants being given a last opportunity to
appear in the next examination for recruitment of officers in the
State Judicial Service to be notified by the Bihar Public Service
Commission hereafter in relaxation of the age bar, if any prescribed.
We make it clear that the appellants shall appear in the said
examination and shall be treated as general category candidates
only. In case they qualify and get selected for appointment as fresh
candidates, their appointments already made in the year 2006
would continue uninterrupted with all consequential benefits of
seniority, etc. In case, however, the appellants fail to qualify for
appointment in the next examination, as indicated above, they shall
cease to hold the posts currently held by them.
14. On the same analogy, we do not see any reason to
deny to Respondents 4 and 5, writ petitioner and intervener, a
similar opportunity whose position is no different. They too appear
to have neglected the subsequent examinations hoping that the
impugned judgment would entitle them to enter the judicial service.
Now that we find it too late for the said respondents to be
appointed on the basis of 44 examination held in the year 2006, the
only option for them too is to try their luck in the next examination
along with the appellants in relaxation of the age bar in the
general/reserved category for Scheduled Caste candidates as the
case may be.
15. In the result, we dismiss this appeal insofar
as the impugned judgment declares that the appellants are not
entitled to the benefit of reservation. The remainder of the
impugned order is however modified to the effect that the
appellants herein and Respondents 4 and 5 (original writ petitioner
and intervener) shall have an opportunity to appear in the next
examination for selection of the Civil Judge, Junior Division (Munsif
Magistrates) in the Bihar Judicial Service, to be notified by the Bihar
Public Service Commission. We make it clear that this opportunity
shall be the last and final opportunity to both sides to appear in the
examination and compete for a fresh appointment. In case the
appellants fail to qualify for appointment in the open merit category
on the basis of their inter se merit with other candidates in that
category, their appointments shall stand terminated with effect from
the date the Public Service Commission declares the final result of
the examination. In case however they qualify their appointment
made in the year 2006 shall continue with all consequential
benefits. The appellants shall not however be entitled to any benefit
of reservation at any stage of their service in future. We further
make it clear that this order has been passed in the peculiar facts
and circumstances of the case and is limited to the appellants and
Respondents 4 and 5 alone. No other candidate placed anywhere in
the merit list of 2006 shall be entitled to claim any such benefit
either from this Court or from the Public Service Commission or by
the State of Bihar for that matter."
10. For requirement of caste certificate the original
documents or the caste certificate of the father of the petitioner
was required which has not been done in the case of the petitioner
and the petitioner is the resident of State of Orissa.
11. In paragraph nos. 20, 21 and 22, the Hon'ble Supreme
Court in the case of "Marri Chandra v. Dean, SGS Medical
College" reported in (1990) 3 SCC 130 answered the same
and held as under:-
"20. Having regard, however, to the purpose and the
scheme of the Constitution which would be just and fair to the
Scheduled Castes and Scheduled Tribes, not only of one State of
origin but other states also where the Scheduled Castes or Tribes
migrate in consonance with the rights of other castes or
community, rights should be harmoniously balanced. 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
community.
21. We have reached the aforesaid conclusion on
the interpretation of the relevant provisions. In this connection, it
may not be inappropriate to refer to the views of Dr B.R.
Ambedkar as to the prospects of the problem that might arise,
who stated in the Constituent Assembly Debates in reply to the
question which was raised by Mr Jai Pal Singh [ Safeguards for
Scheduled Castes and Tribes -- Founding Father's view by H.S.
Saksena, p. 60] which are to the following effect:
"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 his 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...."
22. In that view of the matter, we are of the
opinion that the petitioner is not entitled to be admitted to the
medical college on the basis of Scheduled Tribe certificate in
Maharashtra. In the view we have taken, the question of
petitioner's right to be admitted as being domicile does not fall for
consideration."
12. The judgments relied by the learned counsel for the
respondent State are on the same line and the Full Bench of this
Court has also answered this aspect of the matter in the case of
"Ranjit Kumar v. State of Jharkhand and Others" &
Analogous cases, (2020) SCC Online Jhar. 210.
13. In view of above facts, reasons and analysis, no relief
can be extended to the petitioner. Accordingly, this writ petition is
dismissed. Pending I.A, if any, stands dismissed.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R.
