Bombay High Court
M.S. Malathi vs The Commissioner, Nagpur Division And ... on 3 November, 1988
Equivalent citations: AIR1989BOM138, 1989(2)BOMCR194, (1988)90BOMLR532, AIR 1989 BOMBAY 138, (1989) 2 BOM CR 194, (1988) MAH LJ 1041, (1988) 90 BOM LR 532
JUDGMENT C. Mookerjee, C.J.
1. Their Lordships the Hon'ble Mr. Justice Mohra and the Hon;ble Mr. Justice Ratnaparkhi ,jj., have refereed the Writ Petition No. 5164 of 1988 (transferred from Nagpur Bench Writ Petition No. 16 of 1984) to the Full Bench for determination of the following point:
" Whether the term in relation to the State in Art 341(1) of the Constitution ensures to the benefit of the Schedule Caste only within territorial area of that State , or whether a declaration of Scheduled Caste under, the Constitution order ensures to the benefit of Scheduled Castes for whole of the country and not restricted to the particular State".
Mohta and Ratnaparkhi jj. Were unable to agree with the view taken by an earlier Division Bench if this Court in the case of Wasudeo v. Union of India . 1973 Mah LJ 994 : (1974 Lab IC 141) regarding the interpretation of the said expression "in relation to the State" in Art . 341(1) of the Constitution C.A,. No. 5069 of 1988 has been heard along with the full Bench reference.
2. Kumari S. Malathi the Petitioner Writ Petition No, 16 of 1984 (renumbered as Writ Petition No,5168 of 1988) belongs to Adi Dravida Caste. The said caste Adi Dravida has been specified as a Scheduled Caste in Part XVI of the Scheduled (which relates to Tamil Nadu) to the Constitution (Scheduled Caste) Order, 1950 made by the Presendent in exercise of his powers under Art 341(1) of the Constitution ans as amended under Art 341(2) from time to time by the Parliament of India. The said caste Adi Dravida has not been however included in Part x of the Schedule tom the said Constitution (Scheduled Castes ) Order of 1950 which has specified the Scheduled castes in relation to Maharastra.
3. At the material time of the father of the Petitioner Kumari S. Malathi was employed in the Indian Bureau of Mines. Government of India at Nagpur , claiming to belong to Scheduled Caste she has applied for admission to Bachelor of Dental Medicine and Surgery course 1983-84 in the government Dental College and hospital at Nagpur against a seat reserved for Schedule caste students. She was given provisional admission to the said course to the verification of her caste. The authorities for caste verification had however refused to grant the writ petitioner a certificate too the effect that she was a Scheduled Caste in the State of Maharashtra because in the Constitution (Scheduled Castes) Order, 1950 her caste AdiDravida was not specified as a Scheduled Caste her caste in relation to Tamil Nadu did not entitle her to claim she was a Scheduled Caste also in Maharashtra.
4. Kumari S. Malathi thereupon filed the present Writ Petition before Nagpur Bench of this Court. Under interim orders granted by court, she was admitted in a seat reserved of Scheduled Caste students and was allowed to prosecute her studies in the B.D.S. course at Nagpur Government Dental College and Hospital . she has in fact already completed the course and has been admitted to the Degree of B.D.S. Under further interim orders made by Court, the petitioner has been made a Clinical Assistant in order to enable her to read in the post-Graduate course Kum. Manjusha G. Waghmare would have been entitled to be appointed to the said post of clinical Assistant in the event no Scheduled Caste candidate was available, but as the petitioner was appointed to the said post. Kum . Manjusha Waghmare was not given the said post. She has been allowed to intervene in this matter.
5. The Writ Petition No. 3827 of 1987 has been directed to be placed for hearing along with Writ Petition no. 16 of 1984( renumbered as Writ Petition No. 16 of 5164 of 1988) Kempanna belongs to Adi Karnataka Caste which has been specified in the Constitution (Scheduled Castes) Order, 1950 as a Scheduled Caste in telation to Karnataka State. But in the said Order of 1950 his caste Adi Karnaraka has not been specified as a Scheduled Caste also in relation to Maharashtra State. The respondent shave rejected has claim that he must be deemed to be a Scheduled Caste in Maharashtra and that he ought to be given higher position as Scheduled Caste in that seniority list for Maharashtra Services of Engineers Class II . The Respondents had held that since his caste was not specified in Part X of the Schedule to the constitution (Scheduled Castes ) Order , 1950 he could not be deemed to be a Scheduled Caste in relation to Maharashtra State.
6. Provision for reservation of such for Scheduled Caste students in Government Dental College and Hospital. Nagpur had been made by Maharashtra State presumably in accordance with cl. (4) of Arts. 15 (which was inserted by Constitution ( First) Amendment Act , 1951) read with Art, 46 of the Constitution . The State under cl. (4) of Art. 16 of the Constitution may make reservation of posts in favour of backward classes of citizen who in the opinion of the State are not adequately represented in the service.
7. Therefore in both the Writ Petitions the moot point would be whether the petitioners whose castes has not been specified as Scheduled Caste in relation to Maharashtra in the Constitution (Scheduled Castes) Order . 1950 ought to be deemed as Scheduled Caste in relation to Maharashtra because of the fact that in relation to a different State (Tamil Nadu and Karanadaka respectively ) their castes had been specified as Scheduled Castes. In other words when once a caste under an order made under Art, 341 of specified as Scheduled Caste in relation to one State or Union Territory, whether such caste is to be deemed as Scheduled Caste for the purposes of the Constitution in all States as Union Territories. We may therefore first ascertain the meaning assigned by the Constitution to the expressions' Scheduled Castes' and Scheduled Tribes'. Clauses (24) and (25) of Art 3966 of the Constitution assign the following meaning to the expressions 'Scheduled Castes; and Scheduled Tribes'.
" Scheduled Castes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Art. 342 to be Scheduled Tribes for purposes of this constitution"
Thus, the aforesaid two clauses, in turn refer to the provisions of Arts 341 and 342 for the purpose of identifying Scheduled Castes and Scheduled Tribes. The President in exercise of powers conferred by cl.(1) of Art. 341 had made Constitution (Scheduled Caste) Order. 1950 specifying the castes, races or tribes or parts or groups thereof which shall be deemed as Scheduled Castes for the purposes of the Constitution in relation to the State or Union Territory as the case may be. The Parliament under cl (2) of varied the said lists by including ans /or excluding therefrom. Similarly the President in exercise of his powers conferred by cl (1) of Art 342 of the Constitution had made Constitution (Scheduled Tribes) Order , 1950 which has been from to time amended by the Parliament under cl (2)of Art, 342 . The tribes or tribal communities or parts or groups thereof mentioned in the parts in relation to States to which these parts relate are to be deemed as Scheduled Tribes, so far as regards members thereof resident in the localities specified in relation to them.
8. it is settled now that the orders made under Arts 341 and 342 specifying the Scheduled Castes and Scheduled Tribes are exhaustive. No. person can claim to be a Scheduled Caste or Scheduled Tribes unless his caste or tribe, as the case may be has been specified in any of the parts of the Scheduled to the two Orders made respectively under Arts. 341 and 342. One whose caste or tribes is not specified cannot for the purpose s of the constitution be deemed to be a Scheduled Caste or Scheduled Tribe as the case might be. The President under Art, 342(1) was authorized to limit the notification even to the parts of a State . (Bhaiyyalal v. Harikishan Singh, ).
9. We may proceed to examine in detail the provisions of Art 341, Art 341 was amended by the Constitution (First Amendment) Act . 1951 and also by the Constitution (Seventh Amendment Act ) 1956. Under Art, 341(1) as it stands now the President is required to specify in the prescribed manner in respect of any State or Union Territory , the caste races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the constitution be deemed to be Scheduled Castes in relations to that State or Union territory as the case may be.
10. The clear mandate of clause (1) of a Art 341 is that for each State or Union Territory the castes or tribes or parts or groups thereof are to be separately specified i.e. to be identified by the President. The Supreme Court in the case of Kishorilal v Rajaram had referred to the First , Fifth and Sixth Schedules of the Government of India Act . 1935 and to the Government of India (Scheduled Castes) Order, 1936, In Kishorilal's case (supra) the Supreme Court had observed that the presidential order under Art. 341 of the Constitution has Castes and Scheduled Tribes have been specified for the State or territory or parts thereof in relation to the territory in which they list specifying the scheduled Castes has been also prescribed. Where the list is to be prepared in respect of a State , the President shall consult with the Governor thereof, Such specifying of Scheduled Caste is to be made in relation to each State - I,e. separate lists of Scheduled Castes for each State and Union Territory Shall be prepared. The two key expressions in Art 341(1) are for the purposes of this Constitution and 'in relation to that State or Union Territory ' Mr, Aney the learned counsel in another context himself pointed out that the court ought to endeavor to make a harmonious construction of the different provisions of the Constitution . Therefore both the aforesaid expressions are to be given effect to while specifying under Art 341. Schedule Castes. The expression :purposes of the Constitution " are referable to the provisions of the constitutions relating to the Scheduled Castes ans Scheduled Tribes. The Constitution has recognized that Scheduled Castes and Scheduled Tribes require protection and has made various provisions for safeguarding the interests of Scheduled Castes and Scheduled Tribes etc. (See in this Connection the Speech of Dr. B.R.Ambedkar in the Constituent Assembly while moving for framing draft Articles 300A and 300B ( Now Arts 341 and 342)" ..... The President ....issue a general notifications.... Specifying Scheduled Castes and Scheduled Tribes for the purposes of privileges which have been defined for them in the Constitution " The scheduled Castes have been made subject of special treatment inter alia in matters of (a) admission to educational institutions maintained by the State or receiving aid from State funds. (b) public employment. (c) representation in the Lok Sabha and the State Legislatures by reservation of seats for them. The clause (1) of Atrs 15 and 16 which are but facts of Right to Equality guaranteed by Art, 14 of the Constitution. While Art 15(1) prohibits discrimination against any citizen on he ground only of religion, race, caste, esx or place of birth or any of them. Clause (2) of Art 29 forbids denial of admission to any educational institution maintained by the State or receiving aid from State funds on grounds only of realign, race, caste, language or any of them. The clause (4) of Art 15 provides exception to those embargo imposed by Arts 15(1) and 29(2) by providing that the State may make any special provision for advancement of any socially and educational ly backward classes or for the Scheduled Castes and Scheduled Tribes, The State under clause (4) of Art 16 is entitled to make provisions for reservation of appointments or posts in fvour of any backwards class of citizens which in the opinion of the service of the State. The expression 'backward classes' is undoubtedly wide enough to include not only Scheduled Castes or Scheduled . Tribes but also other backward classes who are not adequately represented in service. According to Mr. Aney the Scheduled Castes and Scheduled Tribes are entitled to claim benefits also under Arts 17, 19, 21, 29, 38, 46, 81, 330, 332, 333, 334, 335, 338, 340, 341, 342, etc., of the Constitution of India, We have no doubt the words for " the purposes of this Constitution " in clause 24 of Art, 366 and in clause (1) of Art . 341, or 342 in their sweep were intended to cover all the provisions in the constitution relating to Scheduled Castes and Scheduled Tribes. But by using at the same time the words in relation to that State or Union Territory' , the Constitution makers clearly exhibited an intention that it would be within the State or Union territory or in respect of which a caste or tribe or groups of parts thereof are specified as Scheduled Caste or Scheduled. Tribes they would enjoy the special provisions relating to Scheduled Castes and Scheduled Tribes in different Articles ofd the constitution . In other words only interrelation to the State in which they are specified by an Order under Arts. 341 and 342 as Scheduled Castes or Scheduled Tribes a caste or a tribe or groups or parts therefrom , the said caste or tribe would be deemed to be Scheduled Caste or Scheduled Tribe for the purposes of the Constitution . Only within the territorial limits of this State in relation to which they have been specified, under Art, 341 members of such castes for the purpose of the Constitution , By logical corollary ,a castes or a tribe which in relation to State has not been speechified in the Orders made either under Art. 341 or 342 cannot be deemed to be Scheduled Caste or Scheduled Tribes, for the purpose of the constitution has made special provisions relating to admission of Scheduled Castes ans Scheduled Tribes, to educational institutions maintained by the State or receiving from State funds or in the matter of reservation for them in the public employment etc. because Scheduled Castes and Scheduled Tribes belong to weaker or backward sections of the community , In Kishorilal v. Rajaram (AIR 1972 SC 798) (supra) the Supreme Court had referred to the Tenth Report of the Commissioners for Scheduled Castes and Scheduled Tribes which maintained taken into account for including a caste or a tribe in the lists of Scheduled Castes as Scheduled Tribes (a) social economic conditions and (b) population figures. They have been given special protection and they cannot be equally treated with others in the matters of admission to educational institution or in making public employment. Similarly ,for limited period of time provisions have been made for reservations of seats for the Scheduled Castes ans Scheduled Tribes communities in the legislature. Such backwardness of Scheduled Castes and Scheduled Tribes would be observiouly always comparative i.e, relative to the rest of the communities in a particular State or Union Territory . The stage of backwardness or degree of social or economic weakness of Scheduled Castes or Scheduled Tribes and their numerical strength or concentration are not uniform or similar though out the different States . Need to protect backward caste and tribes also differ from State to State . While considering trilogies or linguistic minority under Art. 30 of the Constitution to be as backward the Supreme Court in D.A,V. College. State of Punjab. had observed that the same is to be determined with reference to the entire population of a State. Therefore, Arts, 341 and 342 have provided for separately identifying or specifying for each State and Union territory the various castes or tribes who are to be deemed to be Scheduled Castes and Scheduled Tribes. The President is empowered to notify in respect of each State or Union Territory in Which Caste or Tribe.would be deemed to be Scheduled Castes or Scheduled Tribes for the purposes of the Constitutions in reaction to that State or Territory. Accordingly in Exercise of the powers conferred by clause (1) of Art. 341 of Constitution (Scheduled Castes) Order. 1950 and Constitution(Scheduled Tribes) Orders, 1950. In paragraph 2 of the said two Orders, it was clearly stated that "subject to the provisions of this Order , the castes reces, or tribes or parts of ,or groups within, castes or tribes, specified in Parts I to XIX of the Schedule to this Orders shall, in relation to the States to which those Parts respectively relate., be deemed to be Scheduled Castes so far as regards members there of resident in the localities specified in relation to them on those Parts of that Scheduled " In the Schedule for each State and Union Territory a separate part has specified the castes who in relation to that State shall be deemed as Scheduled Castes as the case may be.
11. In the case of Bhaiyyalal v. Harikishan, (supra) the Supreme Court had observed that it was open to the President to declare a caste or a sub-caste shall be deemed to be a Scheduled Caste in a particular part of the State and not in another part. Therefore under the law as it stood then, a person who wanted to be elected from a Scheduled Caste constituency was bound to established that he had been registered as a Scheduled Caste in his electoral and the fact that his caste was recognized as a Scheduled Caste in the Constituency from which he was seeking election was of no avail (See also Kishorilal v, Raja Ram, ).
12. We are unable to accept as sound the contention of the learned counsel for the Writ Petitioner that once a caste is specified under Art, 341 of the Constitution as a Scheduled Caste, the members of the caste are for the purpose of the constitution to be deemed as a Scheduled Caste in every State give On in Territory. We cannot decline to give full in Art. 341. In respect of a State or Use of both these expressions on Art 341 indicates that the order specifying a caste as a Scheduled Caste os confined or limited to the State or the Union Territory in tarlatan to which such identification had been made . It would be not correct to contend that once a caste is specified in relation to a State or Union Territory , these two expressions are to be totally ignored when constitutional benefits for Scheduled Castes extended to such specified caste. It would also not be correct to urge that when a member of caste which is specified as Scheduled Caste in relation to a particular State migrates to another State. He still carries his mark as a Scheduled Caste. Undoubtedly a person retains the caste tow which he is born even when he moves from one State or Union Territory to another . But this does not mean that even after migrating to another State or Union Territory. One must still be deemed to be a Scheduled Caste in a State or Union Territory other than the particular State or Union Territory in relation to which his caste has not been specified as a Scheduled Caste. In the later part of our judgment we have referred to the letters of the Government of India regarding grant of caste certificates to those who migrate from one State to another and a Division Bench decision of this court has Considered the said letters. A men is deemed to belong to a Constitutions only if his caste under Art 341 had been specified in relation to a particulars state of Union Territory
13. This interpretation of Art 341 does not in any way affect fundamental rights under Art. 19(1)(d)(e) to move thoughout the territory if India or to reside or settle in any part of India. The particular freedoms guaranteed by Art. 19 are enjoyed by every citizen of India irrespective of the fact whether he belongs to a Scheduled Caste or scheduled Tribe / Therefore for true interpretation of Art, 341 any reference to Art 19 would be irrelevant . In a particular State status of a Scheduled Castes could be claimed only if the President under Are 342 has specified the said caste . the Art 341 enjoins that in respect of each State or Union Territory and in case of a State with prior consultation with the Government of that Stste that President may by notification specify a caste or a part thereof as a Scheduled Caste for the purposes of the Constitution in relation to that State or Union Territory .We cannot give any countenance also to the submission that in case we interpret Art. 341 read with Art 366(24) , the same would result in discrimination against those who may migrate from one State or Union Territory. The President's order under Art 341(1) cannot be impugned on the ground it violates Right to Equality , In fact clause (4) of Art, 15 has been held to be an exception to prohibition against discrimination made by Art. 15(1) of the Constitution.
14. In the first place, Art. 341 itself having laid down that Scheduled Castes for the purposes of the Constitution shall be specified in relation to a particular State or Union Territory-there could be no denial of right to equality in case of a person is not deemed as a Scheduled Caste in a State in which his caste under S. 341 has not been specified as a Scheduled Caste. Secondly, a reasonable classification could be made between a person whose caste under Art. 341 has been specified in a State or the Union Territory as a Scheduled Caste and a person who in the same State or Union Territory has not been specified as a Scheduled Caste under Art. 341. The object of such differentiation is to confer benefits for Scheduled Castes who have been so identified in relation to a particular State or Union Territory. In case a person who belongs to a caste which has been specified as a Scheduled Caste only in 'A' State claims the benefits of Scheduled Castes also in 'B' State, by claiiming benefits as a Scheduled one, he might deprive those whose caste has been notified as scheduled Castes in 'B' State and thereby practically defeat the object of specifying Scheduled Castes and Scheduled Tribes in relation to a particular State.
15. The learned counsel Mr. Aney had relied upon the decision in the case of K.C. Vasanth Kumar v. State of Karnataka, . The Supreme Court in Vasanth Kumar's case indicated inter alia the guide lines for affording better employment and educational opportunities for Scheduled Castes, Scheduled Tribes and backward classes. The said decision is not relevant for deciding the point which arises for decision before us.
16. In Pradeep Jain v. Union of India, , the Supreme Court dealt with the question of residence as a requirement for admission to medical colleges and how far preference based on the same would be valid. This decision is also not germane.
17. We have observed that the rationale behind such identifying castes or tribes as Scheduled Castes or Scheduled Tribes is their socio economic and educational backwardness in a particular State or Union Territory. Therefore the benefits of constitutional protection for castes and tribes which are to deemed as Scheduled Castes and Scheduled Tribes are to be given in relation to that State or Union Territory in which the particular caste or tribe suffer from these disabilities and need protection. We accordingly hold that the case of Vasudeo v. Union of India, 1973 Mah LJ 994 : (1974 Lab IC 141) was correctly decided.
18. The Orissa High Court in K. Appa Rao. V. Director of Posts and Telegraphs, and the Punj & Haryana High Court in the V. B. Singh v. State of Punjab. ILR (1976) 1 (Punj and Har) 769 have taken similar views about Article 341 of the Constitution. We respectfully agree with these reported decisions.
19. The Gujarat High Court in Kum. Manju Singh v. The Dean, B. J Medical College, Ghanshyam Kisan Borikar v L.D. Engineering College, have expressed contrary views. With respect, in the said reported decisions of Gujarat High Court, while the expression for our purposes of the Constitution in Art. 341(I) was over emphasized and due consideration was not given to the expressions 'in respect of ...............' and 'in relation to that State or Union Territory'. With respect, the expressions 'for the purposes of the Constitution' and 'in relation to that state' are both to be given effect to and neither the former expression is subservient to the latter nor vice versa. It would be not correct to observe that while the Scheduled Castes are to be specified in relation to a particular State, once specified as Scheduled Caste, members of such castes throughout India would be entitled to claim benefits conferred by Constitution upon Scheduled Castes. We have pointed out that Scheduled Castes are specified in relation to each State and Union Territory in order that in that State or Union Territory castes are given protection and special benefits conferred by Constitution upon Scheduled Castes.
20. The decision of Kanade and Deshpande, JJ. In this case of Bhiwaji Eknathrao Kavle v. State of Maharashtra Writ Petn. No. 1572 of 1980 decided on 3rd February, 1982 was in accord with the view taken about Art. 341 of the Constitution in Wasudeo v. Union of India, (1974 Lab IC 141) (supra). In the Bhiwaji Eknathrao v. the State of Maharashtra (supra) the Petitioner belonged to Dhor community which under the Constitution (Scheduled Castes) Order, 1950 was specified as Scheduled Caste both in Karnataka and Maharashtra. Therefore the Court had struck down reversion order of the Petitioner of the ground that his was nto a Scheduled Castes in Maharashtra. The court had observed:
'Hand the petitioner been shown as belonging to a Scheduled Caste in Karnataka the place of his permanent residence and the said caste is not shown as belonging to the Scheduled Caste in the State of Maharashtra under the public notification, then the said order of reversion would have been justified because the cstes, races or tribes, etc. specified in the public notification issued in exercise of the power under Art. 341 shall for the purpose of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory and such notification can (not/ - ed.) be applicable to another State where such caste is not shown as Scheduled Caste".
21. S.K. Desai, J. sitting with one of us (Kurdukar, J.) in the cases of Miss Anupama Chawla v. State of Maharashtra, Writ Petn. No. 2195 of 1984 and Dhiraj v. State of Maharashtra, Writ Petn. No. 2667 of 1984 decided on 9th July 1984 had similarly interpreted Art. 341 of the Constitution. S. K. Desai and Kurdukar, JJ., had referred to letter dated 18-11-1982 of the Government of India on the subject of grant of caste certificates to members of Scheduled Castes who may migrate from a State in relation to which they have specified as Scheduled Castes to a State or Union Territory where they are not so specified. While the person so migrating may obtion certificate from the competent officer of the State or Union Territory to which he has migrated that in the State or Territory of origin he is a Scheduled Caste, the same would not alter his Scheduled Caste status in relation to the other State. For the foregoing reasons, we answer the reference in the following manner:
A member belonging to Scheduled Caste would be Scheduled Caste only to the State in relation to which his caste is specified as a Scheduled Caste. In a State in relation to which such a caste has not been specified as Scheduled Caste under Art. 341, for purposes of the Constitution the caste would not be deemed to be Scheduled Caste. The case of Wasudeo u. Union of India, (1974) Lab IC 141) (Bom) was correctly decided.
22. The Writ Petition No. 5164 of 1988 cannot succeed. But it would be unjust and inequitable to forfeit the Petitioner of the degree of B.D. S. obtained by her. Under interim orders of Court show has been already appointed as a Clinical Assistant to enable her to read in the Post-Graduate course. In the interest of justice the Petitioner may be allowed to retain the post which be treated as a supernumerary one. The avoid any injustice to the intervenor Kum. Manjusha G. Waghmare we direct the Respondents to appointment her to the post of Clinical Assistant for which show had been at one state selected and to allow her to read in the Post-Gradeate post for which she may be eligible.
23. Writ Petition No. 5164 of 1988 (Writ Petition NO 16 of 1984) is accordingly disposed of in above terms. No order as to costs.
24. The Writ Petition No. 3827 of 1987 must fail, because the Petitioner's caste Adi Karnataka has not been specified by Presidential Order, 1950 as a Scheduled Castes in Maharashtra. He can not claim any post or seniority reserved for Scheduled Caste of Maharashtra. The Writ Petition NO. 3827 of 1987 is discharged without costs.
Certificate to file Appeal to the Supreme Court orally, prayed for is rejected.
25. Ordered accordingly.