Patna High Court
Smt. Kumari Vandana vs The State Of Bihar on 8 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.869 of 2017
======================================================
Bindu Devi Wife of Sri Shravan Sah, Resident of Village- Bangari, P.O.
Basant, P.S. Garkha, District- Saran at Chapra, Presently Mukhiya of Gram
Panchayat Raj, Jalal Basant, Block- Garkha, District- Saran at Chapra.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Social Welfare Department, Government of Bihar,
Patna.
3. The District Magistrate, Saran at Chapra, District- Saran at Chapra.
4. The Additional Collector, Saran at Chapra, District- Saran at Chapra.
5. The District Panchayat Raj Officer, Saran at Chapra, District- Saran at
Chapra.
6. The Circle Officer, Garkha, District Saran at Chapra.
7. Smt. Misha Gupta, Wife of Sri Ravitosh Gupta, Resident of Village- Jalal
Basant, P.O. Basant, P.S. Garkha, District- Saran at Chapra.
8. Smt. Munni Devi, W/o Sri Sheo Shankar Sah Resident of Village- Bangari,
P.O. Basant, P.S. Garkha, District- Saran (Chapra).
9. Smt. Noorjahan, W/o Sri Rojid Ansari Resident of Village- Bangari, P.O.
Basant, P.S. Garkha, District- Saran (Chapra).
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 10775 of 2022
======================================================
Kavita Devi Wife of Vijendra Gupta, Resident of village- Mathauli, P.O.-
Rudalpur, P.S.- Bhore, District- Gopalganj, Presently Mukhiya of Gram
Panchayat Raj, Gopalpur, Block- Bhore, District- Gopalganj.
... ... Petitioner/s
Versus
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
2/21
1. The State Election Commission (Panchayat) Sone Bhawan, Birchand Patel
Path, Patna through the Secretary.
2. The State Election Commissioner, The State Elcetion Commission
(Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
3. The Officer on Special Duty, The State Election Commission (Panchayat),
Sone Bhawan, Birchand Patel Path, Patna.
4. Th State of Bihar, through the Principal Secretary, General Administration
Department, Government of Bihar, Patna.
5. The Principal Secretary, Welfare Department, Government of Bihar, Patna.
6. The District Magistrate, Gopalganj, District Gopalganj,
7. The District Welfare Officer, Gopalganj, District Gopalganj,
8. The District Panchayat Raj Officer, Gopalganj, District Gopalganj,
9. The Circle Officer, Bhore, District Gopalganj,
10. Sanju Parajapatti Wife of Santosh Kumar Pandit Alias Santosh Prajapatti,
Resident of Village- Rudalpur, Tola- Hirapakar, P.O. Rudalpur, P.S. Bhore,
District Gopalganj,
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 5516 of 2023
======================================================
Smt. Kumari Vandana W/o Devi Lal Choudhary R/o- Vill- Chehariya, P.O and
P.S.- Durgawati, Dist- Kaimur, Bhabua.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Department of General
Administration, Government of Bihar.
2. The Chief Secretary, Government of Bihar, Old Secretariat, Patna.
3. The Principal Secretary, Department of General Administration,
Government of Bihar, Patna.
4. The Deputy Secretary, Department of General Administration, Government
of Bihar, Patna.
5. The State Election Commission , through State Election Commissioner,
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
3/21
Patna, Bihar.
6. The District Election Officer (Panchayat) cum District Magistrate, Kaimur
Bhabua.
7. The Senior Deputy Collector, Kaimur, Bhabua.
8. The Circle Officer, Durgawati, Dist.- Kaimur, Bhabua.
9. Sarvesh Singh Yadav S/o- Rajnath Singh R/o- Vill- Udhapura, P.O.-
Kasthari, P.S.- Durgawati, Dist.- Kaimur, Bhabua.
10. Thakur Mallah, S/o Late Gurfekan Mallah R/o- Vill.-Chehariya,Tola Bahera,
P.O. and P.S.- Durgawati, Dist.- Kaimur, Bhabua.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7443 of 2023
======================================================
Manju Devi W/o Sri Bachau Sah Resident of Village- Babhaniyav, P.O. and
P.S. and Block- Chand, Dist.- Kaimur, Bhabua (legally elected Mukhiya of
Gram Panchayat, Padhi, P.S.- Chand, Dist.- Kaimur, Bhabua).
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Department of General
Administration, Government of Bihar, Patna.
2. The Additional Chief Secretay, Department of General Administration,
Government of Bihar, Patna.
3. The Additional Chief Secretary, Panchayat Raj Department, Government of
Bihar, Patna.
4. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel
Path, Patna.
5. The Secretary, State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel Path, Patna.
6. The District Magistrate-cum-Returning Officer, Kaimur at Bhabua.
7. The Block Development Officer, Chand Block, District- Kaimur at Bhabua.
8. The Circle Officer, Chand Block, Dist.- Kaimur, Bhabua.
9. Priti Kumari Chaurasiya, W/o Sri Chandan Chaurasiya R/o Vill.- Karvandia,
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
4/21
P.O. and P.S. and Block- Chand, Dist.- Kaimur, Bhabua.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 9393 of 2023
======================================================
Manju Devi Wife of Sri Bachau Sah Resident of Villlage- Babhaniyav, P.O.
and P.S. Chand, District- Kaimur at Bhabhua, Presently Mukhiya of Gram
Panchayat Raj, Padhi, Block- Chand, District- Kaimur at Bhabhua.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Additional Chief Secretary, General Administration Department,
Government of Bihar, Patna.
3. The General Committee of the General Administration Department, through
its Chairman-cum-Additional Chief Secretary, General Administration
Department, Government of Bihar, Patna.
4. The Criminal Investigation Department, Government of Bihar, Patna
through the Additional Director General of Police, Weaker Section, Criminal
Investigation Department, Bihar, Patna.
5. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel
Path, Patna through the State Election Commissioner.
6. The Secretary, The State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel Path, Patna.
7. Preeti Kumari Chaurasiya Wife of Chandan Chaurasiya Resident of Village-
Karwandiya, P.O. and P.S. Chand, District- Kaimur at Bhabhua.
8. Shamsher Bahadur Singh Son of Sri Sukhdeo Singh Resident of Village-
Babhaniyav, P.O. and P.S. Chand, District- Kaimur at Bhabhua.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 869 of 2017)
For the Petitioner/s : Mr. S.B.K. Mangalam, Advocate
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
5/21
Mr. Awnish Kumar, Advocate
For the State : Dr. Md. Raisul Haque, SC-10
Mr. Binay Kumar, Advocate
(In Civil Writ Jurisdiction Case No. 10775 of 2022)
For the Petitioner/s : Mr. S.B.K. Mangalam, Advocate
Mr. Awnish Kumar, Advocate
For the State : Mr. P.K. Shahi, AG
Mr. Kameshwar Prasad Gupta, GP-10
Mr. Satya Vrat, AC to GP-10
For S.E.C. : Mr. Ravi Ranjan, Advocate
Mr. Girish Pandey, Advocate
For Respondent No. 10 : Mr. Suresh Prasad Bhakta, Advocate
(In Civil Writ Jurisdiction Case No. 5516 of 2023)
For the Petitioner/s : Mr. Radha Mohan Pandey, Advocate
Mr. Chandra Shekhar Verma, Advocate
For the State : Mr. Sheo Shankar Prasad, SC-8
Mr. Sanjay Kumar, AC to SC-8
For SEC : Mr. Ravi Ranjan, Advocate
(In Civil Writ Jurisdiction Case No. 7443 of 2023)
For the Petitioner/s : Mr. Radha Mohan Pandey, Advocate
For the State : Mr. Kumar Alok, SC-7
Mr. Satyeshwar Prasad, AC to SC-7
(In Civil Writ Jurisdiction Case No. 9393 of 2023)
For the Petitioner/s : Mr.Awnish Kumar, Advocate
For the Respondent/s : Mr.P.K. Verma (AAG-3)
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 15 -01 -2024
The writ petitions are placed before us on a reference
made, doubting a Division Bench decision of this Court in
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
Animesh Sil v. State of Bihar 2011 (1) PLJR 1164. The
Division Bench in the case of a selection & appointment to the
post of Junior Scientist-cum-Assistant Professor in Agriculture
Statistics, held that the appellant who is a native of Nagaland
included in the Scheduled Caste list for that State, cannot claim
the benefit of reservation within the State of Bihar. The
reference order expressed a dissent, especially since the decision
was not directly relating to elections; the reservations in which
was the subject of consideration in the writ petition. The matter
was referred for consideration by a Division Bench since,
insofar as reservations to elections, especially in the context of a
person who has come to Bihar by reason only of a marriage, it
was opined, there were wider ramifications. The reference order
reckoned Hindu Law by which a woman on being married is
uprooted from her original family and replanted in her
matrimonial home. It was observed that, on such marriage and
taking up residence in the matrimonial home and State, she
becomes a permanent and full member of that family. She would
be deemed to be part and parcel of not only that family, but also
the State of Bihar. In which event, it would be unfair to deny her
the rights and privileges which are available to a person who
hails and is residing within the State of Bihar.
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
2. On facts, it has to be noticed that except in CWJC
No. 5516 of 2023, all the petitioners belong to the 'Teli' caste
and were residents of the State of Uttar Pradesh, wherein they
are included under the Other Backward Classes (OBC). In the
State of Bihar 'Teli' is included in the Extremely Backward
Classes (EBC). The petitioners contested in the reserved post to
the Panchayats and got elected. Insofar as CWJC No. 5516 of
2023 is concerned, the petitioner belonged to a Scheduled Caste
(SC), 'Pashi', within U.P. and later migrated to the State of
Bihar on marriage. The petitioners were disqualified for reason
of they being original residents of another State, thus dis-
entitled to reservation within the State of Bihar.
3. We heard learned counsel Shri S.B.K. Mangalam
and Shri Radha Mohan Pandey appearing for the petitioners,
Shri Suresh Prasad Bhakta, learned counsel for the respondent,
learned Advocate General, Shri P.K. Shahi and Dr. Md. Raisul
Haque (SC-10) for the State, the learned Standing Counsel
appearing for the Election Commission.
4. Fully supporting the reasoning in the reference
order, the petitioners contented that it is unfair to deny
reservation benefits to women married to Bihar, especially since
they have been residing in the State of Bihar for long and they
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
have assimilated themselves into the culture of the State. It is
also pertinent that in both States, the caste of the petitioners
were included under the Backward Class (BC). It is argued that
Marri Chandra Shekhar Rao v. Seth G.S. Medical College;
(1990) 3 SCC 130, specifically spoke of the involuntary
migration from one State to another State not dis-entitling the
reserved category candidates from claiming reservation in that
other State.
5. Specific reference was also made to Union of
India v. Dudh Nath Prasad, (2000) 2 SCC 20, wherein the
respondent who was a native of the State of West Bengal, but
born and educated in Bihar, was found entitled to the reservation
claimed as belonging to 'Nuniya' caste, notified as a Scheduled
Caste in the State of West Bengal.
6. Learned counsel would also refer to a decision of
the High Court of Himachal Pradesh, Shimla, which specifically
referred to Marri Chandra Shekhar Rao (supra) and found
migration upon marriage, enabling a woman to seek the benefit
of reservation, especially noticing Section 20 of the
Representation of the People Act, 1950 (for brevity "Act of
1950") and the definition of the word 'Ordinarily Resident'. It
was argued that the Bihar Reservation of Vacancies in Post and
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
Services (For Scheduled Caste, Scheduled Tribes and Other
Backward Classes) Act, 1991 (for brevity "Bihar Reservation
Act") is only for the purpose of providing adequate
representation in posts and services under the State and the
prohibition therein, cannot have any bearing on the reservations
enabled in elections to local bodies. Reliance is also placed on
Sections 15 and 16 of the Indian Succession Act, 1925 to
contend that the domicile of a woman would be the domicile of
the husband.
7. It was argued in CWJC No. 5516 of 2023 that
therein the disqualification was made by the Election
Commission, while Section 137 of the Bihar Panchayat Raj Act,
2006 specifically enables an election petition to be filed before
either a Munsiff or a Sub-Judge. In fact, in the aforesaid case, an
election petition was filed before the jurisdictional Munsiff
which was later withdrawn and a further application made
before the Election Commission, who erroneously set aside the
election, is the plea.
8. The learned Advocate General would specially
refer to Article 341 of the Constitution of India to contend that
the list of Scheduled Castes under the Constitution is with
reference to a particular State and the marginalized categories in
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
one State included under the Scheduled Caste cannot claim the
benefit of reservation in another State wherein they reside by
reason of a migration. Insofar as the backward communities in
Bihar, there is a specific division of such Backward Class into
Extremely Backward Class and Backward Class, which is as per
the Bihar Reservation Act. The definition clause under the Bihar
Panchayat Raj Act, 2006, Section 2(b), specifically refers to
Annexure-1 of the Bihar Reservation Act and hence the
provisions of that statute would be applicable even insofar as
elections to the Panchayats. Section 12 of the Panchayat Raj Act
also enables such reservation only insofar as the castes
enumerated under Annexure-1 of the Bihar Reservation Act
which is EBC and not BC. The categorization of BC is made
only in the context of the special circumstances that exist in
Bihar and the petitioners who come from another State cannot
claim the entitlement for such reservation since, the travails and
disadvantages suffered by the same caste members in the State
of Bihar would not have visited the residents of Uttar Pradesh.
9. Learned Standing Counsel for the Election
Commission in answer to the contention raised on Section 137,
specifically refers to Section 136 of the Panchayat Raj Act and
relies on the Full Bench decision of this Court in Rajani
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
Kumari v. State Election Commission; 2019 SCC OnLine Pat
1715. The learned Standing Counsel Dr. Md. Raisul Haque (SC-
10) appearing for the State submits that there is no reason to
take a different opinion from that taken by the Division Bench
of this Court. Reliance is also placed on Ranjana Kumari v.
State of Uttarakhand and Ors.; (2019) 15 SCC 664 which on
identical situation negatived the claim of the SC candidate of a
State to contest in the reserved vacancy of another State.
10. Having gone through the decision in Animesh Sil
(supra), we are not convinced that based on the reasoning in the
reference order a reconsideration is warranted. The decisions of
the Hon'ble Supreme Court referred at the Bar were specifically
noticed to find that the reservation for a post in any State is
made for the benefit of the natives of that State. It was
categorically held that 'if a native of one State migrates to
another State, he does not become entitled to reservation in the
latter State merely by a long residence' (sic-para 21). Therein
the appellant was a native of Tripura, who claimed reservation
for appointment to a post within the State of Bihar. Therein also
the appellant belonged to a BC in Tripura and claimed
reservation as an EBC.
11. The decision was in the context of appointment to
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
a post and so is the Bihar Reservation Act. Insofar as backward
communities are concerned, the Reservation Act in the State of
Bihar categorizes them into EBCs and BCs; based on the socio-
economic conditions within the State. A reservation conferred
on a native of Bihar under the EBC category cannot be enabled
to a person who belongs to the same caste, but is a native of
another State. The reasoning behind the affirmative action of
carving out a special category as EBC, in Bihar, cannot have
any application to the other State; since it is purely based on the
socio-economic conditions existing in Bihar. The travails and
disadvantages of a community member within the State of Bihar
would not have been suffered by a person who was born and
brought up in another State. We also have to notice that though
the Bihar Reservation Act is for the purpose of providing
adequate reservation to SC, ST and OBC in the posts and
services of the State, the definition of 'Backward Classes' in the
Panchayat Raj Act specifically refers to Annexure-1 of the Bihar
Reservation Act. The reservation entitled under Sections 13 and
40 of the Panchayat Raj Act, insofar as the Backward Classes
are concerned, has to go by the categorization of EBCs under
the Bihar Reservation Act, who alone are enabled such
reservation.
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
12. We have also looked at Marri Chandra Shekhar
Rao (supra). The learned counsel specifically referred to
paragraph 23 wherein the voluntary and involuntary transfer
from one State to another State was noticed. Even then the
Hon'ble Supreme Court was cautious in declaring that "it
would, therefore, be necessary and perhaps desirable for the
legislatures or the Parliament to consider appropriate
legislations bearing this aspect in mind so that proper effect is
given to the rights given to scheduled caste and scheduled tribes
by virtue of the provisions under Articles 341 and 342 of the
Constitution. This is a matter which the State legislatures or the
Parliament may appropriately take into consideration" (sic-
para 23). It is not for this Court to legislate and the
disqualification also is not one prohibited by the statute and is
one going by the trite principles of reservation, as also the
interpretation placed by the Constitution Bench of the Hon'ble
Supreme Court on the words: 'for the purposes of this
Constitution' and also 'in relation to that State', employed in
Articles 341 and 342.
13. Insofar as the Scheduled Caste candidate is
concerned, her inclusion in Scheduled Caste category is
available both in the State of U.P. and the State of Bihar.
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
However, the petitioner has her roots in the State of Uttar
Pradesh and came to the State of Bihar by reason only of
marriage. Likewise, the other petitioners also belong to the
Backward Classes in the State of Uttar Pradesh and came to
Bihar by reason of marriage. Their inclusion in the State of
Uttar Pradesh as a Backward Class or a Scheduled Caste would
not enable them to stand for elections within the State of Bihar
even if the very same caste is included as a Scheduled Caste or a
BC in the State of Bihar. Insofar as an EBC reservation is
concerned, which category alone has reservation under the
Panchayat Raj Act, there is no question of an OBC candidate of
U.P. being entitled to such reservation. We cannot also
countenance the argument of the learned counsel that, in
marriage, the migration is involuntary, since it is an arranged
marriage. It would be puerile to presume that the consent of the
woman was not taken for the marriage; which in any event is
irrelevant in deciding the eligibility for reservation, as the law
now exists.
14. We have also looked at State of Himachal
Pradesh v. Naveen Kumari (supra) which considered the issue
based on a reading of Section 20 of the Act of 1950. Therein a
Division Bench had distinguished Marri Chandra Shekhar Rao
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
(supra) and the decision in Action Committee on Issue of Caste
Certificate to SCs/STs v. Union of India; (1994) 5 SCC 244;
which distinction we are unable to accept, with all the respect at
our command. We do not think that the case before the H.P High
Court, which was similar to the one before us, is beyond the
ambit of the ratio decidendi of the decisions of the Hon'ble
Supreme Court or that there is 'want of any firm declaration in
the verdicts of the Hon'ble Apex Court' (sic), as has been
observed by the learned Judges.
15. We also notice the decision of the Hon'ble
Apex Court in Ranjana Kumari (supra) in which Marri
Chandra Shekhar Rao (supra) was relied on and the appellant
who belonged to 'Valmiki' Caste, included as a Scheduled Caste
within the State of Punjab claimed reservation in the State of
Uttarakhand; to which State she migrated on marriage, in which
State also the said caste was declared as a Scheduled Caste. On
identical facts when Ranjana Kumari (supra) has been decided
by the Hon'ble Supreme Court we find absolutely no way to
rely on a Division Bench decision of the High Court of
Himachal Pradesh, which on unspecified reasons found the
Hon'ble Supreme Court judgment to have not made any clear
declaration.
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
16. Section 20 of the Act of 1950 defines 'ordinarily
resident' or rather provides contingencies wherein a person can
be deemed to be ordinarily resident in a constituency or cannot
be said to be so residing; disabling or enabling him to contest in
the elections held therein. The aforesaid definition for the
purposes of the Act of 1950 only provide the circumstances that
enable a person to contest the elections from a constituency in
which he or she is ordinarily resident, but does not enable such
contest in a reserved category; for which, the affirmative action
is not to be found under the Act of 1950, but under the
Panchayat Raj Act.
17. Dudh Nath Prasad (supra) was a case in which
the appellant was selected under the reserved category to the
Indian Administrative Service & Allied Services by the U.P.S.C.
The appellant had obtained the certificate from the State of West
Bengal wherein his parents were residing for more than 30
years. There was a doubt raised about his entitlement under the
reserved category only by reason of the fact that the appellant
had studied in the State of Bihar and his parents had a property
in Siwan, in Bihar; which was negatived by the Hon'ble
Supreme Court. Therein a person with roots in West Bengal,
where his parents had been residing for long had applied and
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
obtained a caste certificate from his native State and applied to
the U.P.S.C for an all India service; not in any manner similar to
the case herein.
18. In Action Committee (supra) the issue raised was
with respect to persons belonging to a Scheduled
Caste/Scheduled Tribe in relation to one State, who migrates to
another State, where a caste or tribe of the same nomenclature is
specified for the purposes of the Constitution to be a Scheduled
Caste or Scheduled Tribe. Whether the person who migrated
from one State to the other would be entitled to the SC/ST
benefits in the other State, was the question raised. The
inclusion of a particular Caste or Tribe in the Schedule by the
President, in consultation with the Governor of a particular
State, was specifically noticed; to find that such inclusion is
based on the conditions and circumstances in which the
particular caste or tribe members live in that State. The concept
of reservation was reiterated to be one to ensure equality to
those persons who suffered such disadvantages in their life, due
to the reason of their belonging in a particular caste or tribe,
which disadvantage was sought to be mitigated and effaced by
the privilege of reservation; intended at providing them a benefit
so as to make their conditions equal with that of the other
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
communities in that area who do not suffer from such
disadvantages. This aspect of disadvantageous start in life could
not be imported into a State to which a member of such
Scheduled Caste or Scheduled Tribe migrates, since then the
individual who migrated would be impairing the chances of
those Scheduled Castes or Scheduled Tribes notified for that
particular 'area/State'.
19. It was held so in paragraph 16 of Action
Committee (supra);
"We may add that considerations for specifying
a particular caste or tribe or class for inclusion in the
list of Scheduled Castes/Scheduled 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 by 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
the 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
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
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 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 area 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".
20. The Constitution Bench decision referred herein
above is Marri Chandra Shekhar Rao (supra).
21. We also observe that Section 137 is with respect
to an election petition wherein dispute is with respect to an
election to Gram Panchayat or Gram Kutchery or the Panchayat
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
Samiti or a Zila Parishad; which in the former case shall lie
before the Munsiff and in the latter before a Sub-Judge within
whose jurisdiction the local body is situated, as pointed out by
the learned Standing Counsel for the Election Commission.
22. Section 136, however, speaks of disqualification
from membership. Sub clause (b) of Section 136(1) refers to
disqualification by or under any law for the time being in force
for the purposes of election to the State. Any question of
disqualification of a member of Panchayat, at any level,
including Mukhiya of Gram Panchayat, Pramukh of Panchayat
Samiti or Adhyaksh of Zila Parishad, Sarpanch of Gram
Kutchery or Panch of Gram Kutchery, before the election or
after election, is to be adjudicated by the State Election
Commission. The issue is squarely covered by the Full Bench
decision of this Court in Rajani Kumari (supra).
23. Indian Succession Act regulates succession and
not reservation. We have, herein above, based on binding
precedents of the Hon'ble Supreme Court, categorically found
the disqualification of a reserved category candidate of one
State, to such reservation in another State, even if the particular
caste is a reserved category in that other State.
24. We confess our inability to refer the matter to a
Patna High Court CWJC No.869 of 2017 dt. 15-01-2024
larger Bench and bow to the dictum as declared in Animesh Sil
(supra) which though was with respect to selection and
appointment, is equally applicable to elections. The ratio
decidendi is the principle of reservation, applicable equally in
elections and selection & appointment. This is the dictum of two
Constitution Bench decisions of the Hon'ble Supreme Court;
Marri Chandra Sekhar Rao & Action Committee (both supra).
25. We respectfully follow the decisions of the
Hon'ble Supreme Court & the Division Bench decision of this
Court in Animesh Sil (supra). Having answered the reference,
we find nothing more to be considered in the writ petitions. We,
hence, reject the writ petitions.
(K. Vinod Chandran, CJ)
Rajiv Roy, J I agree
( Rajiv Roy, J)
Anushka/-
AFR/NAFR
CAV DATE 08.01.2024
Uploading Date 15.01.2024
Transmission Date
