Jharkhand High Court
Kavita Kumari Kandhw And Ors. vs State Of Jharkhand And Ors. [Alongwith ... on 1 May, 2006
Equivalent citations: [2006(2)JCR512(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
Page 926
1. As the matter in all these writ petitions and Letters Patent Appeals relates to appointment of Teachers from amongst the members of Backward Class, including Scheduled Castes and Scheduled Tribes, arising out of a common advertisement and common question of law being involved, they have been heard together and are being disposed of by this common judgment.
2. The main questions, involved in these cases, are:
(a) Whether a candidate, belonging to reserved category of the successor State of Bihar has any right to claim reservation in the services of the successor State of Jharkhand, as because it was a part of the erstwhile State of Bihar? and
(b) Whether a candidate, belonging to reserved category of other State, can claim reservation in the matter of appointment in the services of another State
3. Petitioners in the writ petitions and the private respondents of L.P.A. Nos. 722 of 2004 and 570 of 2005 as also the appellant of L.P.A. No. 457 of 2004 claim to be the members of Scheduled Castes, Scheduled Tribes and other Backward Categories. Page 927 They belong either to the State of Bihar or Uttar Pradesh or other States. They applied for their appointment as Trained Teachers in the Government Primary Schools under the State of Jharkhand, in pursuance of an advertisement, issued on 28th August, 2002 by the Jharkhand Public Service Commission (hereinafter to be referred as 'J.P.S.C.'), which also conducted the written competitive examination on 27th May, 2003, result of which was declared on 20th November, 2003. The writ petitioners, private respondents of L.P.A. Nos. 722 of 2004 and 570 of 2005 and the appellant of L.P.A. No. 457 of 2005 were declared successful.
4. Most of the writ petitioners, including private respondents of L.P.A. Nos. 722 of 2004 and 570 of 2005 having not been provided with the letters of appointment, preferred the writ petitions for a direction on the respondents to consider their cases for appointment as Teachers against the posts, reserved for Scheduled Castes, Scheduled Tribes and Other Backward Categories. W.P.(S) No. 2423 of 2004, filed by Mohammad Muslim and Ram Pravesh Singh, and W.P.(S) No. 1448 of 2005, filed by Lalita Kumari and Janak Deo Kumar, having been allowed by judgment dated 6th May, 2004 and 4th April, 2005 respectively, L.P.A.Nos. 722 of 2004 and 570 of 2005 have been preferred by the State of Jharkhand against the judgments aforesaid. So far as petitioner Arvind Kumar Prabhat of W.P.(S) No. 4363 of 2004 and appellant Sanju Kumari of L.P.A.No. 457 of 2004 are concerned, after the written competitive test, they having been declared successful, letters of appointment were issued in their favour, pursuant to which they joined the services of the State of Jharkhand. Later on, it having been found that Arvind Kumar Prabhat is not a member of Scheduled Caste of the State of Jharkhand but that of the State of Bihar (District-Chapra) and Sanju Kumari having been found to be a member of Backward Class of the State of Bihar (District-Nawadah), their services have been terminated by two impugned letters, both dated 17th February, 2004. The writ petition being W.P.(S) No. 2587 of 2004, preferred by Sanju Kumari, having been dismissed by the learned Single Judge, she has preferred L.P.A.No. 457 of 2004 against the said judgment.
5. On behalf of the petitioners, it was submitted that many of them being the members of Backward Class of combined State of Bihar, they should be treated as Backward Class, including Scheduled Castes and Scheduled Tribes, for whole territory of the erstwhile State of Bihar even after re-organization of the State and thereby they should be treated as Backward Class, including Scheduled Castes and Scheduled Tribes, for both the successor States of Bihar and Jharkhand.
6. The submission aforesaid can not be accepted in view of the amendment, made in the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950 as also Jharkhand Reservation Act, 2001. By virtue of the Bihar Re-organization Act, 2000, the Constitution (Scheduled Castes) Order, 1950, so far as it relates to the schedule, relating to the castes of the State of Bihar, was amended. In Item No. 5 of Part III, which relates to the State of Bihar, the sentence 'excluding North Chhotanagpur and South Chhotanagpur Divisions and Santhal Parganas District' was omitted. After Part IV (Himachal Pradesh), Part VIA-'Jharkhand' was inserted, showing therein the castes, included in the schedule for the State of Jharkhand. The Constitution (Scheduled Tribes) Order, 1950 was also amended and in Part III, in respect to the State of Bihar, Item No.6 and the. entries, made therein, were deleted. After Part XXI, Part XXII-'Jharkhand' was inserted, showing therein, the list of 30 Tribes, included in the schedule in the State of Jharkhand.
Page 928
7. The State of Jharkhand came out with Jharkhand Reservation Act, 2001 for the purposes of reservation in the services and posts of the State of Jharkhand. Therein provision was made to reserve the services and posts in favour of Scheduled Castes, Scheduled Tribes and Other Backward Categories. In the Schedule, list of Other Backward Categories were shown, including most Backward Category and Backward Category.
8. From the aforesaid facts, it will be evident that since 15th November, 2000 there is a separate Schedule of Castes, notified under the Constitution (Scheduled Castes) Order, 1950 for the State of Jharkhand and a separate Schedule of Tribes, notified under the Constitution (Scheduled Tribes) Order, 1950 for this State. The Government of Jharkhand also notified a separate list, recognizing the class of persons, who form other Backward Classes.
9. The question, as raised in these cases, stands settled by the decisions of the Supreme Court, rendered from time to time.
In the case of Marri Chandra v. Dean, S.G.S. Medical College , the Supreme Court held that the candidate, recognized as the member of Scheduled Tribe/Scheduled Caste in his original State, on his migration to another State, is not entitled to get the benefits of reservation. The following observations were made by the Court:
13... It is, however, appears to us that the expression 'for the purposes of this Constitution' in Article 341 as well as in Article 342 do imply that the Scheduled Caste and the Scheduled Tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. Constitutional right, e.g., it has been argued that right to migration or right to move from one part to another is a right given to all- to Scheduled Castes or Tribes and to non-scheduled castes or tribes. But when a Scheduled Caste or Tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State specified for that State or area of part thereof....
In the case of 'Action Committee on Issue of Caste Certificates to Scheduled Castes and Scheduled Tribes in the State of Maharastra' v. Union of India , the Supreme Court held that a person, belonging to Scheduled Caste/Scheduled Tribe in relation to his original State, of which he is permanent or original resident, can not be deemed to be so in relation to any other State. Having noticed a decision of the Constitution Bench of Supreme Court in the case of Pradeep Jain v. Union of India , the Supreme Court in the case of "Action Committee" (supra) further held that:
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 suffers from disabilities in those areas.
In the case of M.C.D. v. Veena , which related to reservation under Article 16(4) and (4-A), a question arose regarding the area in Page 929 which a particular OBC can be treated as such. Having discussed the relevant provisions, the Supreme Court held as follows:
6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree or disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs.
10. Similar was the view of the Supreme Court in the case of U.P. Public Service Commission, Allahabad v. Sanjay Kumar Singh , wherein, the Supreme Court held that a person, certified as Scheduled Caste/Scheduled Tribe in relation to one State, if migrates to another State, he would not be entitled to the benefits, available to the Scheduled Castes/Scheduled Tribes of the State, in which he so migrates, unless he belongs to Scheduled Caste/Scheduled Tribe in that State also.
11. In view of the aforesaid decisions of the Supreme Court it is clear that a Backward Class of one State cannot be deemed to be so in relation to other State and the certificate, issued by one State, is not valid for other State.
12. The aforesaid issue also fell for consideration before the then State of Bihar, which having noticed different decisions of the Court and interpretations, by its Memo No. 11/Vi. 1-1038/91 Ka.-70 dated 11th June,1996 directed not to give benefits of reservation to those, who belongs to other States. The aforesaid circular not only guided the successor State of Bihar at the present but also is in force in the successor State of Jharkhand, in view of Section 84 of the Bihar Re-organization Act, 2000.
13. In the aforesaid background the State of Jharkhand has also issued letter No. 7/Vi.Vi.R-14-02/05 Ka.1219 dated 29th April, 2005, directing its authorities not to issue caste certificates in favour of those, who are permanent residents of other States.
14. The writ petitioners, private respondents of L.P.A. Nos.722 of 2004 and 570 of 2005 and the appellant of L.P.A. No. 457 of 2005 belong to Backward Class, including Scheduled Castes and Scheduled Tribes. Most of them belong to the State other than the State of Jharkhand, such as, Uttar Pradesh, or the districts, which now fall within the territory of the successor State of Bihar. Thus, they cannot derive the advantage of reservation for the purposes of appointment in the State of Jharkhand. We have noticed that some of the petitioners have enclosed Page 930 Castes Certificates, most of which have been issued by the district authorities, which now fall within the successor State of Bihar or Uttar Pradesh whereas one or other petitioner have enclosed the Caste certificates, issued by the district authorities, territory of which now fall within the State of Jharkhand. But in many of the cases, the certificates, so enclosed, have been issued much after submission of the application for appointment. It has brought to our notice that many persons though have enclosed the caste certificates, issued by the district authorities of the State of Bihar, in the writ petitions certain certificates, issued by the district authorities of the State of Jharkhand, have also been enclosed to suggest that they belong to the State of Jharkhand. Such individual cases cannot be scrutinized by this Court nor such claim can be determined, which can be taken care of by the competent authorities of the State. If any certificate, enclosed by one or other petitioner, issued by the district authorities of the State of Jharkhand prior to submission of the application forms, has been enclosed, then the authorities may consider the case of such person for appointment against the reserved categories, if it is found that such person belongs to the State of Jharkhand. But those, who have enclosed the certificates, issued by the district authorities, now fall within the State of Bihar, or the certificates, issued by the district authorities of Uttar Pradesh or any other State, cannot claim reservation for appointment in the services of the State of Jharkhand. Similarly, those, who have obtained certificates from the district authorities of the State of Jharkhand after the last date of filing of the application form, those certificates also cannot be taken into consideration to grant benefit of reservation.
15. So far as petitioner Arvind Kumar Prabhat of W.P.(S) No. 4363 of 2004 and appellant Sanju Kumari of L.P.A. No. 457 of 2004 are concerned, they having produced caste certificates, issued by the district authorities, which fall within the State of Bihar, cannot claim benefit of reservation. If they were appointed wrongly against the reserves posts, they should make room for others, who actually belong to reserved categories of the State of Jharkhand. In this situation, this Court is not inclined to interfere with their orders of termination both dated 17th February, 2004 and no relief can be granted.
16. So far as private respondents of L.P.A. Nos. 722 of 2004 and 570 of 2005 are concerned, they have produced the caste certificates, issued by the district authorities of the State of Bihar. Thus, they are also not entitled to claim appointment against the reserved posts in the State of Jharkhand. In such background the learned Single Judge should not have allowed their prayer.
17. In the facts and circumstances and being satisfied with the grounds, shown in I.A. No. 2165 of 2005, we condone the delay of 90 days in preferring the memo of appeal (L.P.A. No. 570 of 2005) and allow the appeal by setting aside the order, passed by the learned Single Judge. Similarly, on being satisfied with the sufficient cause shown in I.A. No. 2459 of 2004, the delay of 3 months and 19 days in preferring the memo of appeal (L.P.A. No. 722 of 2004) is also condoned and the order impugned, passed by the learned Single Judge, is hereby set aside. Liberty is given to those petitioners, who have produced the caste certificates, issued by the district administration of the State of Jharkhand along with their application, to approach the Secretary, Primary Education, Government of Jharkhand, with a copy to the concerned District Superintendent(s) of Education. If it is found that their certificates are genuine, issued by the district administration of the State of Jharkhand, and Page 931 have been enclosed with the application forms, their cases may be considered for appointment against the reserved categories, if declared successful and recommended by the J.P.S.C.
18. In the result, all the writ petitions with regard to the petitioners, except those, who have produced valid certificates, issued by the district administration of the State of Jharkhand, along with the application forms for appointment, are dismissed. In regard to others, the case stands disposed of. L.P.A. Nos. 722 of 2004 and 570 of 2005 are hereby allowed whereas L.P.A. No. 457 of 2004 is dismissed.