Karnataka High Court
Vijith Kishan S/O A Ayyakkannu vs The State Of Karnataka on 19 June, 2012
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JUNE 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.24690/2011(GM-CC)
BETWEEN
VIJITH KISHAN
S/O A. AYYAKKANNU
AGED ABOUT 17 YEARS
BEING A MINOR REP BY
NATURAL & LEGAL GUARDIAN
THE FATHER, A.AYYAKKANU
R/A HOUSE NO.2-140-13
VERSHA REGENT, PARK LAYOUT
HOSABETTU, MANGALORE
D.K.DISTRICT-575 026
... PETITIONER
(BY SRI M.NARAYANA BHAT, ADV., FOR
M/S SUBBARAO & CO., ADVS.,)
AND
1. THE STATE OF KARNATAKA
REP BY ITS SECRETARY
DEPARTMENT OF SOCIAL WELFARE
M.S.BUILDING
BANGALORE-560 001
2. THE KARNATAKA EXAMINATION
AUTHORITY, REP BY ITS
2
EXECUTIVE DIRECTOR
SAMPIGE ROAD, 18TH CROSS
MALLESWARAM
BANGALORE-560 012
3. THE DEPUTY COMMISSIONER
D.K DISTRICT
MANGALORE-575 001
4. THE TAHSILDAR
MANGALORE TALUK
D.K. DISTRICT-575 001
5. UNION OF INDIA
REP BY ITS SECRETARY
MINISTRY OF SOCIAL JUSTICE
AND EMPLOYMENT
ROOM NO.609, A-WING
SHASTRY BHAVAN
DR.RAJENDRA PRASAD MARG
NEW DELHI - 110 001
... RESPONDENTS
(BY SRI C.JAGADISH, SPL.GA FOR R1, 3 & 4;
SRI N.K.RAMESH, ADV., FOR R-2;
SRI S.SRINIVASA, CGC FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING DIRECT
RESPONDENT NO.2 TO CONSIDER THE APPLICATION OF
THE PETITIONER AND PERMIT HIM TO PARTICIPATE IN
THE COUNSELING WHICH HAS COMMENCED AND ETC.,
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE
DELIVERED THE FOLLOWING:
JUDGMENT
In this Petition, it has been prayed that the Respondents be mandated to permit the Petitioner to participate in the Counselling for the MBBS/BE degree 3 course as a Scheduled Caste candidate and secondly, to mandate the Tahsildar to issue a Caste Certificate.
2. Briefly stated, the facts are that the Petitioner was born, brought up and educated in Mangalore. There is adequate evidence to this effect available on record including the Senior School Certificate issued by the Central Board of Secondary Education, in which the Petitioner has attended the Kendriya Vidyalaya, No.1, Panambur, Mangalore, D.K., and also the birth and study certificates. It is also not in dispute that the Petitioner belongs to the Scheduled Caste Parayan, Paraya, which are duly recognised in Karnataka to be Scheduled Castes. It is submitted that in the previous year, the Petitioner secured a rank of 6849 in the medical stream. In the current academic year, he has secured the rank of 2540 and accordingly stands a very bright chance of gaining admission to the MBBS/BE course, if considered as a Schedule Caste candidate. He had applied to the Tahsildar for issuance of Form 'D', which has been declined on the ground that the Petitioner's father was born in Tamilnadu, based on an understanding of Marri Chandra Shekhar Rao vs Dean, Geth G.S.Medical College, (1990)3 SCC 130 and 4 the Constitution Bench judgment in Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra, (1994)5 SCC 244, caste certificate has been refused on the ground that the Petitioner is a migrant.
3. Having heard learned counsel for the parties, we are of the opinion that the judgments of the Supreme Court have been misunderstood and misapplied by the Respondents. In a plethora of precedents, the Hon'ble Supreme Court has laid down that migrants are not intended to avail reservations that are extendable to a particular Scheduled Caste in the State to which they have migrated on the basis of a Scheduled Caste certificate issued by their State of origin. The rationale behind this is not difficult to perceive. If this disqualification was not imposed, it will attract, by almost like a magnetic force, persons from all over country belonging to a particular caste to the State of migration with the result that the local people would not be entitled to the benefits of reservation. In paragraph 8 of Action Committee, the Constitution Bench clarifies that "the migrant would not be entitled to derive benefits in the State to which he has migrated on the 5 strength of such a certificate." This disqualification, if we may see it as such, would visit the father of the Petitioner as he is stated to have been born in Tamilnadu and migrated to Karnataka, where he obtained employment. So far as the Petitioner is concerned, he was born in Karnataka, his entire childhood and education was in Karnataka, and we can see no reason to look upon him as a migrant in this State. It is almost a general principle of law that birth indicates or entitles all benefits of the State of birth. In fact, if an analysis of the law is to be made worldwide, it is an exception where the law disentitles a citizenship on the strength only of birth. In the present case therefore, the correct procedure, it seems to us, is not to apply the disability or disqualification that visits the father of the Petitioner, to the Petitioner himself as he is "ordinarily resident" in Karnataka as any person whose forefathers may have been born in this State.
4. It has also been contended on behalf of the Respondents that the Petitioner should have been born on the date of the presidential notification. As we have already stated above, the caste to which the Petitioner belongs is a recognised Scheduled Caste since 1956, so far as the State 6 of Karnataka is concerned and the Petitioner does not have such a disqualification, having been born in the year 1993.
5. In these circumstances, the Writ Petition is allowed. Respondent No.4 is directed to reconsider the application/request of the Petitioner for issuance of Form 'D' under the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.,) Rules, 1992 on the assumption that he is ordinarily resident in the State of Karnataka. Needful be done within fifteen days from today. However, learned counsel for Respondent Nos.1, 3 and 4 prays for a longer time since enquiries have to be made. In these circumstances, we direct that suitable action be taken within sixty days from today. However, Counselling is scheduled to commence from 25.06.2012. Respondent No.2, i.e., the Karnataka Examination Authority is directed to permit the Petitioner to be counselled, also assuming him to be a scheduled caste candidate. The direction to Respondent No.2 has been issued anticipating the possibility of a delay in issuance of Form 'D' by the Tahsildar. In any event, since caste certificate in Form 'D' is not available in the present Petition, it may lead to non- 7 consideration of the application. Respondent No.2 is directed to give provisional admission to the Petitioner. The admission will be subject to the issuance of caste certificate.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv