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TMI Blog1994 (7) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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: "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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibe 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 W.P. No. 1572 of 1980, decided on 3-2-1982 (Bom HC) 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 Maharashtra W.P. No. 2499 of 1983, decided on 19-9-1984 (Bom) decided by the Bombay High Court, Pendse, J. on 19-9-1984, (iii) Rajesh Arjunbhai Patel V. State of Maharashtra (AIR 1990 Bom 114:1990 Mah LJ 55) decided by the Bombay High Court, Daud, J. on 31-7-1989 and (iv) Kannaya Devjibhai Borisa V. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry", 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 College (AIR 1986 Guj 175: 1986 Guj LH 483) and State of Gujarat v. R.L. Patel (AIR 1992 Guj 42: (1990) 31 Guj LR 1163) as well as the decision of the Karnataka High Court in P.M. Muni Reddy v. Karnataka Public Service Commission (1981 Lab IC 1345 (Kant) 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Pradeep Jain (Dr) v. Union of India (1984) 3 SCC 654) the Constitution Bench took notice of the fact that Scheduled Castes and Scheduled Tribes had to suffer soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved 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 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them....... Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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