Full Judgment Text
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PETITIONER:
ACTION COMMITTEE
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT18/07/1994
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
SAWANT, P.B.
PUNCHHI, M.M.
YOGESHWAR DAYAL (J)
SINGH N.P. (J)
CITATION:
1994 SCC (5) 244 JT 1994 (4) 423
1994 SCALE (3)358
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
AHMADI, J.- Where a person belonging to a caste or tribe
specified for the purposes of the Constitution to be a
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 the
Constitution to be a Scheduled Caste or a Scheduled Tribe in
relation to that State B, will that person be entitled to
claim the privileges and benefits admissible to persons
belonging to the Scheduled Castes and/or Scheduled Tribes in
State B? is the neat question raised in this petition
brought under Article 32 of the Constitution by one Shri
Devidas Kuberdas Kantharia in his personal capacity as ’well
as in his capacity as the Chairman of Petitioner 1
Committee. The grievance sought to be projected in this
petition, which has been brought in a representative
capacity and by way of a Public Interest Litigation, is that
State B denies the benefits and privileges admissible to
such persons belonging to Scheduled Castes and Scheduled
Tribes who have migrated from State A or any other State.
Before we set out the specific nature of the grievance it
may be advantageous to refer to the provisions in the
Constitution which have a bearing on the question at issue.
2. In Part XVI of the Constitution special provisions
relating to certain classes including Scheduled Castes and
Scheduled Tribes have been made. Articles 330 and 332
provide for reservation of seats for Scheduled Castes and
Scheduled Tribes in the House of the People and in the
Legislative Assemblies of the States. Article 335 enjoins
that claims of Scheduled Castes and Scheduled Tribes shall
be taken into consideration in making all appointments to
services and posts in connection with the affairs of the
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Union or of a State. Article 338 provides for the
appointment of a Special Officer for Scheduled Castes and
Scheduled Tribes to investigate all matters relating to the
safeguards provided for them and to report to the President
upon the working of those safeguards. Then come Articles
341 and 342 which may be reproduced at this stage :
"341. Scheduled Castes.- (1) The President
may with respect to any State or Union
Territory, and where it is a State after
consultation with the Governor thereof, by
public notification, specify the castes, races
or tribes or parts of or groups within castes,
races or tribes which shall for the purposes
of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union
Territory, as the case may be.
342. Scheduled Tribes.- (1) The President may
with respect to any State or Union Territory,
and where it is a State, after consultation
with the Governor thereof, by public
notification, specify the tribes or tribal
247
communities or parts of or groups within
tribes or tribal communities which shall for
the purposes of this Constitution be deemed to
be Scheduled Tribes in relation to that State
or Union Territory, as the case may be."
Clause (2) of Article 341 empowers Parliament to include or
exclude by law from the list of Scheduled Castes or
Scheduled Tribes specified in the notification issued under
clause (1) any caste, race or tribe or part of or group
within any caste, race or tribe. Similar provision is to be
found in clause (2) of Article 342 in relation to any tribe
or tribal community, etc. Both these provisions further
state that save as aforesaid a notification issued under
clause (1) of the respective articles shall not be varied by
any subsequent notification.
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.
4. The petitioners herein are aggrieved because the State
of Maharashtra has denied the benefits and privileges
available to Scheduled Castes and Scheduled Tribes specified
in relation to that State to members of the Scheduled Castes
and Scheduled Tribes belonging to other States who have
migrated from other States to the State of Maharashtra.
These benefits and privileges are denied on the basis of
certain circulars and letters issued by the Government of
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India and consequential instructions issued by the State of
Maharashtra indicating that members belonging to the
Scheduled Castes and Scheduled Tribes specified in relation
to any other State shall not be entitled to the benefits and
privileges accorded by The State of Maharashtra unless the
person concerned is shown to be a permanent resident of the
State of Maharashtra on 10-8-1950 in the case of Scheduled
Castes and 6-9-1950 in the case of Scheduled Tribes. These
are the dates on which the President first promulgated the
Constitution (Scheduled Castes) Order, 1950 and the
Constitution (Scheduled Tribes) Order, 1950. The
petitioners, therefore, contend that the denial of the
benefits and the privileges by the State of Maharashtra is
violative of the fundamental rights conferred on citizens by
Articles 14, 15(1), 16(2) and 19 of the Constitution,
besides being contrary to the letter and spirit of Articles
341 and 342 of the Constitution. The
248
petitioners contend that a bare perusal of the Constitution
(Scheduled Castes) Order, 1950 and the Constitution
(Scheduled Tribes) Order, 1950 as amended by the Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act, 1976
would show the same castes and tribes specified in respect
of more than one State. Those belonging to the Scheduled
Castes and the Scheduled Tribes, wherever situate, are
economically backward. Besides on account of social and
economic backwardness they have to suffer a host of
indignities and atrocities and are very often compelled to
migrate from one State to another in search of livelihood or
to escape the wrath of their oppressors. Earlier they did
not experience any difficulty in obtaining caste/tribe
certificates to secure benefits available to the Scheduled
Castes and Scheduled Tribes in the State of Maharashtra.
The situation, however, changed drastically after the
Government of India issued a communication addressed to
Chief Secretaries to all State Governments/Union Territories
on 22-3-1977.
5. Before we refer to the contents of the communication
dated 22-3-1977 it may be advantageous to notice the
relevant provisions of the Constitution (Scheduled Castes)
Order, 1950 and the Constitution (Scheduled Tribes) Order,
1950 made in exercise of powers conferred by Article 341(1)
and Article 342(1) respectively of the Constitution. In the
Order first mentioned clause (2) provides as under:
"2. Subject to the provisions of this Order,
the castes, races or tribes or parts of, or
groups within, castes or tribes specified in
Parts 1 to (XXII) of the Schedule to this
Order shall, in relation to the States to
which those Parts respectively relate, be
deemed to be Scheduled Castes so far as
regards member thereof resident in the
localities specified in relation to them in
those Parts of the Schedule."
Clause (2) of the second mentioned Order reads
as under:
"2. The tribes or tribal communities, or part
of, or groups within, tribes or tribal
communities, specified in Parts 1 to XIX of
the Schedule to this Order shall, in relation
to the State to which those Parts respectively
relate, be deemed to be Scheduled Tribes so
far as regards members thereof residents in
the localities specified in relation to them
respectively in those Parts of that Schedule."
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6. The Government of India in the Ministry of Home Affairs
noticed that certificates belonging to a particular
Scheduled Caste/Scheduled Tribe were not issued strictly in
accordance with the principles governing the issue of such
certificates presumably on account of lack of understanding
of the legal position regarding the concept of the term
"residence" on the part of the authorities concerned. With
a view to clarifying the legal position the communication of
22-3-1977 came to be issued. The relevant part of that
communication may be reproduced for ready reference :
"As required under Articles 341 and 342 of the
Constitution, the President has, with respect
to every State and Union Territory and where
it is State after consultation with the
Governor of the concerned State,
249
issued orders notifying various Castes and
Tribes as Scheduled Castes and Scheduled
Tribes in relation to that State or Union
Territory from time to time. The inter-State
area restrictions have been deliberately
imposed so that the people belonging to the
specific community residing in a specific
area, which has been assessed to qualify for
the Scheduled Caste or Scheduled Tribe status,
only benefit from the facilities provided for
them. Since the people belonging to the same
caste but living in different State/Union
Territories may not both be treated to belong
to Scheduled Caste/Tribe or vice versa. Thus
the residence of a particular person in a
particular locality assumes a special
significance. This residence has not to be
understood in the liberal or ordinary sense of
the word. On the other hand it connotes the
permanent residence of a person on the date of
the notification of the Presidential Order
scheduling his caste/tribe in relation to that
locality. Thus a person who is temporarily
away from his permanent place or abode at the
time of the notification of the Presidential
Order applicable in his case, say for example,
to earn a living or seek education, etc., can
also be regarded as a Scheduled Caste or a
Scheduled Tribe, as the case may be, if his
caste/tribe has been specified in that order
in relation to his State/Union Territory. But
he cannot be treated as such in relation to
the place of his temporary residence
notwithstanding the fact that the name of his
caste/tribe has been scheduled in respect of
that area in any Presidential Order."
The communication further states that with a view to
ensuring the veracity of permanent residence of a person and
that of the caste/tribe to which he claims to belong, the
Government of India made a special provision in the pro form
a prescribed for the issue of such certificates. In order
to ensure that competent authorities should alone issue such
certificates the Government of India (Department of
Personnel and Administrative Reforms) by a letter dated 6-8-
1975 indicated the authorities locality-wise who should
issue the certificates. The communication then proceeds to
add :
"Thus the Revenue Authority of one District
would not be competent to issue such a
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certificate in respect of persons belonging to
another District. Nor can such an authority
of one State/Union Territory issue such
certificates in respect of persons whose place
of permanent residence at the time of the
notification of a particular Residential
Order, has been in a different State/Union
Territory."
This was emphasised because only the revenue authorities of
the locality of which the individual is the resident alone
would have access to revenue records to be in a position to
make reliable enquiries before the issuance of the
certificate. In regard to persons born after the date of
the notification of the relevant Presidential Order, the
communication states that the place of residency for the
purpose of acquiring Scheduled Caste or Scheduled Tribe
certificate is the place of permanent abode of their parents
at the time of the notification of the Presidential Order
under which they claim to belong to such a caste/tribe.
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7. Subsequent to the issuance of the said communication by
the Government of India, the Commissioner for Scheduled
Castes and Scheduled Tribes submitted his 22nd Report
wherein he pointed out that instances had come to his notice
where false certificates were produced by non-Scheduled
Caste/Scheduled Tribe persons to secure government service
or admission to educational institutions. The report
disclosed that such certificates were being issued without
the authority issuing the same being even aware of basic
requirements necessary for such certificates. On the basis
of the recommendations made by the Commissioner and having
regard to the procedure adopted by the State of West Bengal
which was commended for acceptance by the Commissioner, the
Government of Maharashtra, in modification of the existing
orders directed that caste certificates issued by the
Special Executive Magistrates should be treated as ‘
preliminary certificates’ and final certificates should be
issued only by the Executive Magistrate authorised by the
District Magistrate in that behalf. It was also directed
that Special Executive Magistrates should certify only the
castes to which they themselves belonged. The Government
states that if despite these instructions incorrect caste
certificates are issued, a serious view will be taken. In
the instructions appended to the said Government Order it
was, inter alia, stated in paragraphs 13 and 19 as under :
"13. Caste Certificates should be issued only
to those who have ordinary residence of the
place within the jurisdiction of the competent
authority. Ordinary residence means residence
which is not for the purpose of service,
employment, education, confinement in jail,
etc. In short, it means permanent residence
and not a temporary residence.
19. Where a person migrates from one State
to another, he can claim to belong to a
Scheduled Caste or a Scheduled Tribe only in
relation to the State from which he has
migrated. The competent authority should not,
therefore, issue a caste certificate to a
person from other State, whether he is
ordinary (sic) residing in this State or not."
By the subsequent letter of 12-2-1981, it was further
clarified that in order to become eligible for being treated
to be a member of Scheduled Caste/Tribe in relation to the
State of Maharashtra a person should be a permanent resident
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of the State of Maharashtra before 10-8-1950, and 6-9-1950,
respectively, the dates of the notifications of the
respective Presidential Orders of 1950 scheduling the
castes/tribes in relation to the State of Maharashtra.
Since there was no State of Maharashtra in 1950 it would be
reasonable to understand it to mean the geographical area
now forming part of the State of Maharashtra. At the foot
of the pro form a of the certificate the following note was
appended:
"Note : The term ’ordinarily reside(s)’ used here will have
same meaning as in Section 20 of the Representation of the
People Act, 1950." Section 20 of the Representation of the
People Act, 1950, reads as under:
251
"20. Meaning of ’ordinarily resident’.- (1) A person shall
not be deemed to be ordinary resident in a constituency on
the ground only that he owns, or is in possession of, a
dwelling house therein.
(1A) A person absenting himself temporarily from his place
of ordinary residence shall not by reason thereof cease to
be ordinarily resident therein.
(1B) A member of Parliament or of the Legislature of a State
shall not during the term of his office cease to be
ordinarily resident in the constituency in the electoral
roll of which he is registered as an elector at the time of
his election as such member, by reason of his absence from
that constituency in connection with his duties as such
member.
(2) A person who is a patient in any establishment
maintained wholly or mainly for the reception and treatment
of persons suffering from mental illness or mental
defectiveness, or who is detained in prison or other legal
custody at any place, shall not by reason thereof be deemed
to be ordinarily resident therein.
(3) Any person having a service qualification shall be
deemed to be ordinarily resident on any date in the
constituency in which, but for his having such service
qualification, he would have been ordinarily resident on
that date.
(4) Any person holding any office in India declared by the
President in consultation with the Election Commission to be
an office to which the provisions of this sub-section apply,
shall be deemed to be ordinarily resident on any date in the
constituency in which, but for the holding of any such
office, he would have been ordinarily resident on that date.
(5) The statement of any such person as is referred to in
sub-section (3) or sub-section (4) made in the
prescribed form and verified in the prescribed manner, that
but for his having the service qualifications or but for his
holding any such office as is referred to in sub-section (4)
he would have been ordinarily resident in a specified place
on any date, shall, in the absence of evidence to the
contrary, be accepted as correct.
(6) The wife of any such person as is referred to in sub-
section (3) or sub-section (4) shall, if she be ordinarily
residing with such person be deemed to be ordinarily
resident in the constituency specified by such person under
sub-section (5).
(7) If in any case a question arises as to where a person
is ordinarily resident at any relevant time, the question
shall be determined with reference to all the facts of the
case and to such rules as may be made in this behalf by the
Central Government in consultation with the Election
Commission.
(8) In sub-sections (3) and (5) ’service
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qualification’ means-
(a) being a member of the armed forces of the
Union; or
252
(b) being a member of a force to which the
provisions of the Army Act, 1950 (46 of 1950),
have been made applicable whether with or
without modifications; or
(c) being a member of an armed police force
of a State, who is serving outside that State;
or
(d) being a person who is employed under the
Government of India, in a post outside India."
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 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
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253
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.
9. The petitioners contend that having regard to the
difficulty experienced by persons belonging to the Scheduled
Castes/Scheduled Tribes, both in the State of origin and in
the State to which they migrated, they were obliged to move
the High Court for seeking an appropriate writ or direction
on the plea that the cut-off date was arbitrarily fixed and
was therefore violative of Articles 14 and 19 and Articles
341 and 342 of the Constitution. Reference has been made by
the petitioners to four judgments delivered by the Bombay
High Court (i) Bhiwaji Eknath Kawle v. State of Maharashtra’
decided by the Aurangabad Bench of the Bombay High Court
comprising Kanade and Deshpande, JJ. on 3-2-1982, (it)
Rajesh Khusalbhai Patel v. State of Maharashtra2 decided by
the Bombay High Court, Pendse, J. on 19-9-1984, (iii) Rajesh
Arjunbhai Patel v. State of Maharashtra3 decided by the
Bombay High Court, Daud, J. on 31-7-1989 and (iv) Kannaya
Devjibhai Borisa v. State of Maharashtra4 decided by the
Division Bench of Bombay High Court, Mookerjee, C.J. and
Sharad Manohar, J., dated 28-9-1989, granting reliefs to the
petitioners. The petitioners contend that notwithstanding
the pronouncements of the Bombay High Court in the aforesaid
writ petitions persons belonging to the Scheduled
Castes/Scheduled Tribes continue to experience difficulties
in securing certificates from the State of origin as well as
the State to which they had migrated on account of the
instructions issued by the Government of India as contained
in the communication dated 22-3-1977 and the subsequent
communications referred to earlier. The petitioners have,
therefore, moved this Court so that an authoritative
pronouncement of this Court may introduce a uniform pattern
in regard to the issuance of certificates to the persons
belonging to the Scheduled Castes/Scheduled Tribes without
being compelled to knock at the doors of different High
Courts.
1 W.P. No. 1572 of 1980, decided on 3-2-1982 (Bom HC)
2 W.P. No. 2499 of 1983, decided on 19-9-1984 (Bom
3 AIR 1990 Bom 114:1990 Mah LJ 55
4 AIR 1990 Bom 394: (1990) 1 Bom CR 546
254
10. In the counter filed on behalf of the State of
Maharashtra, it is contended that the question raised in
this petition has been conclusively answered by a
Constitution Bench of this Court in Marri Chandra Shekhar
Rao v. Dean, Seth G.S. Medical College5, and as such the
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petition is liable to be dismissed. Without prejudice to
this preliminary contention, it is pointed out that the
expression "in relation to that State" read with the words
"for the purposes of this Constitution" in Articles 341 and
342 leave no manner of doubt that the specification made is
"in relation to that State" for which it is made i.e. the
State of origin and not that State to which a person
migrates. That is because the concept of backwardness in
Articles 15 and 16 is a relative one varying from area to
area and region to region and hence it is not permissible to
generalise any caste or any tribe as a Scheduled Caste or as
a Scheduled Tribe for the whole of the country. Therefore,
a person belonging to a Scheduled Caste or a Scheduled Tribe
in relation to a State would require necessary protection
and benefits in that State to bring about equality but the
social environment of the State to which he migrates may not
be the same as in the State of his origin and therefore he
cannot claim the benefits and privileges available to
Scheduled Castes and Scheduled Tribes in the State to which
he migrates. Therefore, the contention of the petitioners
that on migration the caste or tribe of the person concerned
does not change and if such person is denied the
concessions, benefits and privileges available to Scheduled
Castes and Scheduled Tribes in the State to which he
migrates, such a denial would be in violation of Article 14
of the Constitution, in that, the right to equality and
equal treatment would be denied, cannot be sustained. For
the very same reason, the challenge to the communications
and circulars issued by the Government of India and the
Government of Maharashtra is without merit. It is,
therefore, contended by the deponent that there is no merit
in this petition and the same should be dismissed.
11. Unfortunately, even though the main challenge is to the
communications/circulars issued by the Government of India,
no counter has been filed on behalf of the Union of India
even though considerable time has elapsed since the issuance
of notice on 17-8-1990. Even on 12-2-1991, the learned
counsel for the Union of India reported that he had not been
able to obtain instructions from the Ministry concerned as
to the stand that the Union of India may like to take on the
question raised in this petition. On that occasion, we
stated that we consider it necessary that the Union of India
should clarify its stand so that the Court may receive
assistance from the learned counsel representing the Union
of India to enable it to effectively resolve the issue.
Reluctantly, this Court extended the time by another two
weeks to enable it to do so. The Secretary to the Ministry
of Welfare was also directed to take appropriate steps to
ensure the filing of a counter clarifying the stand of the
Union of India before the next date of hearing, namely, 5-3-
1991. A copy of the order was sent to the Secretary to
enable him to pursue the matter and ensure that the counter-
affidavit was filed
5 (1990) 3 SCC 130: (1990) 14 ATC 671: 1990 Supp (1) Scale 7
255
before the next date. Unfortunately, despite the indulgence
given by this Court, no counter-affidavit has been filed on
behalf of the Union of India. What a sorry state of affairs
that even after the highest officer in the Ministry is
sounded the lethargy continues. So we have to decide the
issue without a counter from the Central Government.
12. The petition came up for final disposal before a Bench
of three learned Judges of this Court on 12-3-1991.
Having heard arguments for three days, the learned Judges
passed the following order on 15-3-1991:
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"We have heard these matters at some length
but we have come to the conclusion that the
problem raised in these petitions is likely to
affect various fundamental issues regarding
the recognition of Scheduled Castes and
Scheduled Tribes under Articles 341 and 342 of
the Constitution, read with Presidential
Orders in this context. In our opinion, these
are appropriate matters to be placed before a
Constitution Bench of this Court. The papers
may be placed before the Chief Justice for
necessary directions in this behalf."
That is how the matter came up for final disposal before us.
13. We may incidentally mention that an Interim Application
No. 1 of 1990 was taken out for permission to proceed in a
representative capacity. An order was passed on that
application on 17-8-1990 directing notice to issue
returnable on 3-10-1990.
14. It is a matter of common knowledge that before and
during the British rule also the social order in India was
of graded inequality. During the freedom struggle some of
our leaders strived to bring about social integration to
give a fillip to the independence movement. The need to
bring about equality was strongly felt. After independence
when the Constitution was being framed for free India,
considerable emphasis was laid on the need to secure
equality. The debates of the Constituent Assembly bear
testimony to this felt need. The Preamble of our
Constitution, which is aptly described as the conscience of
our Constitution, promises to secure to all citizens
"equality of status and of opportunity". In the Chapter on
Fundamental Rights, Article 14 emphatically states that the
State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of
India. But then the Constitution-makers were also aware of
the prevailing inequality in the social structure of the
country and, therefore, felt the need to correct this
imbalance through appropriate provisions. While Article
15(1) in unmistakable terms provides that the State shall
not discriminate against any citizen on grounds only of
religion, caste, race, sex, place of birth or any of them,
Article 15(4) says that nothing in the foregoing paragraph
of the said article shall prevent the State from making any
special provision for the advancement of any socially and
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes. So also Article
16(1) posits that there shall be equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State and clause (2)
thereof adds that no citizen shall, on grounds
256
of religion, race, caste, sex, descent or place of birth,
residence or any of them, be ineligible for or discriminated
against in respect of any employment or office under the
State. But then clause (4) of Article 16 provides that
nothing in the foregoing part of the article shall prevent
the State from making any provision for the reservation of
appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not
adequately represented in services under the State. Article
19, insofar as is relevant for the purposes of this
petition, states that all citizens shall have the right to
move freely throughout the territory of India and to reside
and settle in any part of the territory of India. The
submission of the learned counsel for the petitioner was
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that since Article 19 confers a right of free movement
throughout the territory of India and a right to reside and
settle in any part of the territory of India, persons
belonging to the Scheduled Castes and Scheduled Tribes have
a right to move from one State to another without hindrance
and to reside and settle in any other State. There can be
no doubt that this is a fundamental right and members
belonging to the Scheduled Castes/Scheduled Tribes specified
in one State have a right to free movement to another State
and to reside and settle in the other State if they so
desire. As stated earlier certain privileges have been
conferred on members belonging to the Scheduled Castes and
Scheduled Tribes in Part XVI of the Constitution, namely,
Articles 330, 332, 335 and 336 which we have referred to
earlier. But as pointed out earlier on a plain reading of
clause (1) of both Articles 341 and 342, extracted earlier,
it becomes obvious that the power of the President is
limited to specifying the castes/tribes which shall, "for
the purposes of Constitution?’, be deemed to be Scheduled
Castes or Scheduled Tribes "in relation to a State or a
Union Territory", as the case may. The contention of the
learned counsel for the petitioners was that the legal
position explained in the communication of 22-3-1977 and
subsequent communications flowing therefrom and referred to
earlier was not consistent with the language of Articles
341(1) and 342(2) and was even otherwise violative of the
concept of equality enshrined in Articles 14, 15, 16 and 19
of the Constitution. The learned counsel further pointed
out that the decisions of the Bombay High Court referred to
in the earlier part of this judgment and the decisions of
the Gujarat High Court in Manju Singh v. Dean, B.J. Medical
College6 and State of Gujarat v. R.L. Patel as well as the
decision of the Karnataka High Court in P.M. Muni Reddy v.
Karnataka Public Service Commission8 should be approved as
they have-rightly held that the words "for the purposes of
this Constitution" should not be read as subservient to the
words "in relation to that State". If so interpreted the
view expressed by the Government of India in the
communication dated 22-3-1977 would be wholly erroneous and
in violation of the fundamental rights referred to earlier.
He, therefore, contended that since the Maharashtra
Government order of 21-3-1979 follows the interpretation
placed by the
6 AIR 1986 Guj 175: 1986 Guj LH 483
7 AIR 1992 Guj 42: (1990) 31 Guj LR 1163
8 1981 Lab IC 1345 (Kant)
257
Government of India in the communication of 22-3-1977, the
former must also be held to suffer on the same vice of
constitutional invalidity and opposed to the spirit and
purpose of Articles 341 (1) and 342(1). On the other hand
the learned counsel for the Union of India, though
handicapped for want of a counter, and the learned counsel
for the State of Maharashtra placed strong reliance on the
Constitution Bench decision in Marri Chandra5 and submitted
that these very submissions were canvassed before the
Constitution Bench by Mr Raju Ramachandran, and were
spurned. If we agree with the submission of the learned
counsel for the respondents that the point at issue in this
petition stands covered by the decision of the Constitution
Bench in the aforesaid case nothing further would remain for
us to decide. It would, therefore, be advantageous to
straightaway refer to the decision in Marri Chandra case5.
15. Marri Chandra was born in Tenali in the State of Andhra
Pradesh and belonged to Gouda community, popularly known as
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’Goudi’. This community was specified as a Scheduled Tribe
in the Constitution (Scheduled Tribes) Order, 1950 as
amended till then. His father had obtained a Scheduled
Tribe certificate from the Tehsildar on the basis whereof he
secured employment in the quota reserved for Scheduled
Tribes in a Government of India Undertaking and was posted
in Bombay, State of Maharashtra. The petitioner was then
aged about 9 years. He prosecuted his studies in Bombay and
passed the 12th standard examination held by the Maharashtra
State Secondary and Higher Secondary Examination Board.
Thereafter he sought admission to the respondent-college
claiming benefit of reservation as one belonging to the
Scheduled Tribe. He was, however, denied admission in that
quota though Scheduled Tribe candidates who had secured
lesser marks than him but whose State of origin was
Maharashtra were admitted. The denial of admission *as
based on the circular dated 22-2-1985 issued by the
Government of, India which has already been referred to by
us. Having failed to secure admission in any medical
college in the quota reserved for Scheduled Tribe
candidates, he questioned the denial before this Court under
Article 32 of the Constitution. A Constitution Bench headed
by Sabyasachi Mukharji, C.J., as he then was, examined the
question whether one who is recognised as a Scheduled Tribe
in the State of his origin continues to have the benefits or
privileges or rights in the State to which he migrates. In
paragraph 6 of the judgment the precise question was
formulated as follows:
"This question, therefore, that arises in this
case is whether the petitioner can claim the
benefit of being a Scheduled Tribe in the
State of Maharashtra though he had, as he
states, a Scheduled Caste certificate in the
State of Andhra Pradesh?"
In answering this question the Constitution Bench was called
upon to interpret Articles 341 and 342 of the Constitution
and determine what the expression "in relation to that
State" read in conjunction with "for the purposes of this
Constitution" seeks to convey. After referring to the
provisions of Articles 14, 15 and 16 and the decision of
this Court in
258
Pradeep Jain (Dr) v. Union of India9 the Constitution Bench
took notice of the fact that Scheduled Castes and Scheduled
Tribes had to suffer social disadvantages and were denied
facilities for development and growth in certain States. To
grant equality in those States where they suffered and were
denied facilities for development and growth certain
protective preferences, facilities and benefits in the form
of reservation, etc., had to be provided to them to enable
them to compete on equal terms with the more advantageous
and developed sections of the community. It is not
necessary to dilate on this point as the Constitution itself
recognises that members belonging to the Scheduled Castes
and Scheduled Tribes and other backward classes have to be
given certain incentives, preferences and benefits to put
them on an even keel with others who have hitherto enjoyed a
major share of the facilities for development and growth
offered by the State, so that the former may, in course of
time, be able to overcome the handicap caused on account of
denial of opportunities. The interpretation that the Court
must put on the relevant constitutional provisions in regard
to Scheduled Castes/Scheduled Tribes and other backward
classes must be aimed at achieving the objective of equality
promised to all citizens by the Preamble of our
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Constitution. At the same time it must also be realised
that the language of clause (1) of both the Articles 341 and
342 is quite plain and unambiguous. It clearly states that
the President may specify the castes or tribes, as the case
may be, in relation each State or Union Territory for the
purposes of the Constitution. It must also be realised that
before specifying the castes or tribes under either of the
two articles the President is, in the case of a State,
obliged to consult Governor of that State. Therefore, when
a class is specified by the President, after consulting the
Governor of State A, it is difficult to understand how that
specification made "in relation to that State" can be
treated as specification in relation to any other State
whose Governor the President has not consulted. True it is
that this specification is not only in relation to a given
State whose Governor has been consulted but is "for the
purposes of this Constitution" meaning thereby the various
provisions of the Constitution which deal with Scheduled
Castes/Scheduled Tribes. The Constitution Bench has, after
referring to the debates in the Constituent Assembly
relating to these articles, observed that while it is true
that a person does not cease to belong to his caste/tribe by
migration he has a better and more socially free and liberal
atmosphere and if sufficiently long time is spent in
socially advanced. areas, the inhibitions and handicaps
suffered by belonging to a socially disadvantageous
community do not truncate his growth and the natural talents
of an individual gets full scope to blossom and flourish.
Realising that these are problems of social adjustment it
was observed that they must be so balanced in the mosaic of
the country’s integrity that no section or community should
cause detriment or discontentment to the other community.
Therefore, said the Constitution Bench, the 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 to in order to
9 (1984) 3 SCC 654
259
become equals with others but those who go to other areas
should ensure that they make way for the disadvantaged and
disabled of that part of the community who suffer from
disabilities in those areas. The Constitution Bench summed
up as under:
"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 controversy in the instant case does not
become difficult."
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
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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
fights, 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
260
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. Lastly the Constitution Bench referred to the cleavage
in the views of different High Courts on the interpretation
of Articles 341 and 342 of the Constitution and the
consequential orders passed by the Government of India and
the State Governments. It referred to the two decisions of
the Gujarat High Court as well as the decision of the
Karnataka High Court which place the interpretation
canvassed before us by Mr Raju Ramachandran. The other side
referred to the decisions of the Orissa High Court in K.
Appa Rao v. Director of Posts & Telegraphs, Orissa10, the
decision of the Full Bench of the Bombay High Court in M.S.
Malathi v. Commissioner, Nagpur Division" and the decision
of the Punjab & Haryana High Court in V.B. Singh v. State of
Punjab12 which take the contrary view canvassed before us by
the respondents. All these decisions were considered by the
Constitution Bench which agreed with the latter view. It
upheld the view expressed in the communication dated 22-2-
1985 and negatived the challenge of the petitioner that the
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said view was ultra vires Articles 14, 15, 16 or 21. It,
however, observed that in the facts and circumstances of the
case and having regard to the fact that the petitioner
student’s career was involved it directed the authorities to
consider whether the petitioner was a ’Goudi’ and if yes,
the institution may consider if he can be allowed to
complete his studies in the institution. However, on the
interpretation of the relevant provisions of the
Constitution this Court was clear in its view that legally
speaking he was not entitled to admission in the Scheduled
Tribe quota.
18. We are in respectful agreement with the above view
expressed by the Constitution Bench in the aforesaid
decision. All the points which were canvassed before us by
Mr Raju Ramachandran were also canvassed by him in the said
matter. They were negatived by the Constitution Bench.
Nothing has been pointed out to persuade us to think that
the view taken by the Constitution Bench requires
reconsideration by a larger Bench. In fact we are in
complete agreement with the interpretation placed on the
various provisions of the Constitution, in particular
Articles 341 and 342 thereof, in the said judgment. We,
therefore,, see no merit in this writ petition and dismiss
the same. However, we make no order as to costs.
10 AIR 1969 Ori 220: 35 Cut LT 55
11 AIR 1989 Bom 138: 1988 Mah LJ 1041: (1988) 90 Bom LR 532
(FB)
12 ILR (1976) 1 P&H 769
262