Andhra HC (Pre-Telangana)
Chilwar Sarojini Devi vs Government Of A.P. And Ors. on 17 October, 2003
Equivalent citations: 2003(6)ALD716, 2004(2)ALT168
Author: E. Dharma Rao
Bench: E. Dharma Rao
ORDER E. Dharma Rao, J.
1. This writ petition is filed aggrieved by the impugned order passed by the third respondent-the Commissioner of Tribal Welfare, Government of Andhra Pradesh through his proceedings dated 5.3.1993 addressed to the second respondent-the Deputy Director of Social Welfare Department marking copy of the same to the writ petitioner.
2. The Commissioner of Tribal Welfare, after enquiring into the social status of the petitioner, observed that the case of the petitioner cannot be considered as a member of Scheduled Tribe in the State of Andhra Pradesh and as such she cannot be considered for appointment as Matron in Government Social Welfare Hostels in a vacancy reserved for Scheduled Tribe candidates of Andhra Pradesh State. It is stated that the said proceedings were issued by the third respondent following the circular issued by the Government of India Ministry of Home Affairs dated 22.2.1985 which is violative of Article 19 of the Constitution. It is further stated that the order places restriction on the fundamental rights which will have validity throughout the Territory of India and hence it is in violation of the provisions of Constitution of India. It is further contended that it was not mentioned in the notification issued calling for applications to fill up the posts of Matrons in the Andhra Pradesh Government Social Welfare Hostels that the Scheduled Caste and Scheduled Tribe candidates notified in other States are not entitled for the posts of Matrons in the Government Social Welfare Department of Andhra Pradesh. Therefore it denies the opportunity to the Scheduled Tribe candidates notified in other States in the State of Andhra Pradesh. Therefore the petitioner seeks to quash the impugned proceedings of the third respondent.
3. The facts of the case are as follows: The parents of the petitioner namely Kushal Chand and Rukmini Bai originally hail from Talabkatta Village in Hingoli Taluk, Parbhani District of Maharashtra State and erstwhile State of Nizam and the petitioner was born to them in the year 1957. The father of the petitioner was employed in All India Radio and as such he was transferred to All India Radio Station, Hyderabad in the year 1963 and ever since then the petitioner lived with her parents at Hyderabad and she continued to live in Hyderabad even after her father's death. Her father belonged to "Mannerwarlu" community which is a Scheduled Tribe in Maharashtra State. It is further stated that after coming to know about the vacancies for the posts of Matrons Grade-II in the Social Welfare Department of the Government of Andhra Pradesh reserved for Scheduled Tribe candidates, she made an application for appointment to one of the said posts as she is having necessary eligible qualifications. Thereafter the second respondent directed the petitioner to appear for interview before the District Collector, Medak on 2.5.1992. Accordingly, she appeared and got selected as Matron Grade-II in the Social Welfare Department but her posting orders have been kept in abeyance pending clearance certificate of her social status from the Director of Tribal Welfare. Accordingly notice dated 5.1.1993 was issued to the petitioner by the Director and accordingly she appeared before the Commissioner of Tribal Welfare on 21.9.1993 with all necessary documentary evidence and her statements were also recorded to establish her social status as a candidate belonging to Scheduled Tribe. She also filed supportive documents but surprisingly she received the impugned order dated 5.3,1993 from the second respondent passed by the third respondent holding that the petitioner is not eligible for appointment as Matron Grade-II in the Social Welfare Department as she does not belong to Schedule Tribe community in the State of Andhra Pradesh. This order was passed by the third respondent on verification of the certificates produced by the petitioner i.e., caste certificate dated 21.7.1989 issued by the Executive Magistrate, Aurangabad and caste certificate issued by the Maharashtra Mannervarlu Samaz, Aurangabad and transfer certificate issued by the Head Master, Nrupathuga High School, Hyderabad wherein the column meant for recording the caste of the student was kept dash. The third respondent also followed the circular issued by the Ministry of Home Affairs in B.C. 16014/1/ 82-S.C.& BC.D.I, dated 22.2.1985 clarifying that the Scheduled Caste and Scheduled Tribe persons who have migrated from his/her State of origin to some other State for the purpose of seeking education or employment will be deemed to be a Scheduled Caste/ Scheduled Tribe of the State of his/her origin and will be entitled to derive the benefits from the State of origin and not from the State to which he/she has migrated.
4. In reply to the above said facts and contentions raised by the petitioner the respondent-Government has filed its counter. It is stated in the counter that the name of the petitioner was sponsored by the Central Employment Exchange, Hyderabad for reinstatement to the post of Grade-II Matron, reserved for Scheduled Tribe community. She was called for interview on 2.5.1992 and later she was directed to appear before the Commissioner of Tribal Welfare, Hyderabad for verification of her social status through notice dated 1.10.1992 issued by the second respondent. Accordingly, the petitioner appeared on 29.1.1993 and on enquiry the Commissioner submitted report dated 5.3.1993 holding that the petitioner cannot be considered as member of the Scheduled Tribe in the State of Andhra Pradesh. Accordingly, the District Collector, Medak informed the petitioner through proceedings dated 23.4.1993 that her selection to the post of Grade-II Matron in the Scheduled Tribe reserved vacancy cannot be considered. It is admitted that the petitioner and her parents belong to Talabkatta Village, Hingoli Taluk, Parbhani District, Maharashtra State and her father was transferred to All India Radio Station, Hyderabad. The parents of the petitioner are having family house bearing No. 1158 in Chwni Cantonment Area, Aurangabad Taluk of Maharashtra State. It is further stated in the counter that the caste certificates issued by Maharashtra State clearly show that the petitioner belongs to Scheduled Tribe but hails from the State of Maharashtra State and therefore, she cannot be considered as Scheduled Tribe candidate to the above said post in the State of Andhra Pradesh. Further the contention of the petitioner that the Circular issued by the Ministry of Home Affairs dated 22.2.1985 was wrongly interpreted by the respondents is also not correct. Further it is denied that the impugned order imposes restrictions on the fundamental rights of the petitioner and the circular issued by the Amended Act 108 of 1976 would become inoperative and that the Scheduled Tribe people migrated to other State are also eligible to make application for the notified post. It is finally contended that the President of India is the competent authority to declare a particular caste in any State and it is for the Parliament by enactment to amend the list of castes notified under Article 342 of the Constitution and therefore a person who is recognized as a member of Scheduled Tribe in his original State will be entitled to the benefits in that State alone and not in all parts of the country whenever he migrates. In view of the same the petitioner is not entitled for Scheduled Tribe status in the State of Andhra Pradesh. Hence the writ petition may be dismissed.
5. On the basis of the above pleadings, the Counsel for the petitioner submitted that the third respondent-the Commissioner of Tribal Welfare has no right to determine the social status of the petitioner and it is for the President to determine and notify the caste or tribe of an individual in India. In support of his contention he relied upon the decision of the Supreme Court in State of Maharashtra v. Kumari Tanuja, . In the said case when a Bawa community was notified as a Scheduled Tribe a writ petition was filed in the High Court of Bombay challenging the order of the Caste Scrutiny Committee dated 27.10.1996 and the order of the Additional Commissioner of Konkan Division, Bombay dated 12.11.1987 wherein the said authorities have held that the respondent therein was not entitled to claim the benefit of reservation for the Nomadic Tribe in the State of Maharashtra as it was notified in the State of Sindh when it was combined in the State of Bombay. When the matter went to the Supreme Court, it was held by the Supreme Court as follows:
"The various Resolutions and Notifications issued by the Government of the then State of Bombay and also the present State of Maharashtra, from time to time, show that Bawa community without reference to any region, was included as a synonyms of Bairagi/Gosavi which, in turn, was notified as a Nomadic Tribe. This was the position even in the Resolution of the State dated 21.11.1961. When Sindh was part of Bombay Presidency, admittedly the Bawas of that region were also treated as belonging to the Nomadic Tribe in the entire Presidency of the then Bombay, even when Sindh got separated from Bombay Presidency, the subsequent Resolutions of the Bombay Government continued to show Bairagi and Gosavi communities with their synonyms as Nomadic Tribes without there being any regional restrictions. This is obviously because by then many members of the Bawa community from Sindh region had migrated to various parts of Bombay Presidency. The Bawa community from Sindh is therefore entitled to the benefits reserved for Nomadic Tribe vide Government Resolution dated 21.11.1961."
In view of the above it is submitted that the petitioner was declared as belonging to Scheduled Tribe in the State of Maharashtra when she migrated from Maharashtra State to the State of Andhra Pradesh and as such she may be treated as she belongs to the Scheduled Tribe in the State of Andhra Pradesh. Therefore the denial of right to opportunity is against the settled principles of law. In the above case before the Supreme Court Bawa community in Sindh was declared as Nomadic Tribe and the Bawa community without reference to any region was included as a synonyms of Bairagi/ Gosavi which in turn was notified as a Nomadic Tribe but in our State the tribe to which the petitioner belongs is not notified as Scheduled Tribe. The above principle laid down by the Supreme Court in Kumari Tanuja's case is applicable to the State of Maharashtra, as Sindh was part of Maharashtra. But this principle is not applicable to the State of Andhra Pradesh, as it is not a part of Maharashtra. As per the notification of the President of India under Article 142 of the Constitution, each State is having its own list of Scheduled Castes and Scheduled Tribes, as notified by the President of India, based on the conditions laid down under Article 142 of the Constitution. Therefore, the petitioner may belong to a particular tribe, which is notified as Scheduled Tribe, in the State of Maharashtra, she cannot be treated as Scheduled Tribe in the State of Andhra Pradesh. Thus the purport of the judgment relied on by the learned Counsel for the petitioner is not applicable to the facts and circumstances of the case.
6. On the other hand the learned Government Pleader appearing for the respondents places strong reliance on the judgment of the Constitutional Bench of the Supreme Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India, , wherein 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 ordinary resident cannot be deemed to be so in relation to any other State on his migration to the State for the purpose of employment, education etc. The Supreme Court further held as follows:
"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 purpose 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. 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. Considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled 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 the considerations on the basis of which they we 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 rights, 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."
Further for the benefit of clarification let us see Articles 341 and 342 of the Constitution which empowers the President of India to notify Scheduled Castes and Scheduled Tribes in each State. Article 341 contemplates that 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. Article 342 of the Constitution contemplates that 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 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 maybe". Clause (2) of Article 341 empowers Parliament to include or exclude by law from the list of the scheduled cases 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. 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 purpose 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.
7. In view of the above discussion, I hold that Articles 341(1) and 342(1) of the Constitution, deal with notifying Scheduled Castes and Scheduled Tribes by the President with respect to any State or Union Territory and where it is a State after consultation with the Governor, to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory. The President of India while exercising the power conferred under Article 342(1) of the Constitution in consultation with the Governor of the State of Maharashtra, has notified the community of the petitioner as Scheduled Tribe and also notified the list of Scheduled Tribe in that State and also in the State of Andhra Pradesh. As interpreted by a Constitution Bench of the Apex Court in the Action Committee's Issue of Caste certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India case (supra), a given caste or tribe can be Scheduled Caste or Scheduled Tribe in relation to the State or Union Territory for which it is specified, the consideration for such specifications for inclusion in the list of Scheduled Castes/Scheduled 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. When once the petitioner's tribe was declared as Scheduled Tribe by the President of India in exercise of powers under Article 342(1) and that list is confined to the State of Maharashtra only and if she migrate from that State to the State of Andhra Pradesh, which is having its own notified list of Scheduled Tribes having regard to the extent of disadvantages and social hardships suffered by them in the State of Andhra Pradesh she cannot claim to be treated as Scheduled Tribe in the State of Andhra Pradesh. Therefore, I am unable to accede to this contention raised by the learned Counsel for the petitioner. Once the petitioner is declared as a member of Scheduled Tribe in the State of Maharashtra and if she migrates to any part of the country in India, which she is entitled to by virtue of Fundamental Rights guaranteed under Article 19 of the Constitution, she cannot claim the same social status of the Scheduled Tribe in other States, which was declared in the State of Maharashtra, and avail the benefits in such other State. Therefore, it cannot be held that impugned order passed by the 3rd respondent in accordance with the instructions issued by the Government of India, is violative of Article 19 of the Constitution of India. Therefore, merely because a given caste or tribe is specified in State as a Scheduled Tribe does not necessarily mean that if there be any other caste bearing the same nomenclature in another State. Therefore, it is not evident from the facts and circumstances of the case that when the petitioner's tribe was specified as a Scheduled Tribe by the President after consultation with the Governor of the State of Maharashtra and that the petitioner's tribe suffered the social hardships in the state of Maharashtra and that is not the Tribe listed in the State of Andhra Pradesh. Therefore, the case of the petitioner cannot be considered as Scheduled Tribe in the State of Andhra Pradesh and as such she cannot be allowed to enjoy the benefits and privileges conferred on the Scheduled Tribes candidates in the State as the person belonging to the former State would be entitled to the rights privileges and benefits admissible to a member of Scheduled Tribe of latter State for the purpose of the Constitution. Further, I am not able to accept the contention of the learned Counsel for the petitioner that by virtue of the impugned order the third respondent has determined the social status of the petitioner. Actually the third respondent has not determined the social status of the petitioner but he has considered the question whether the petitioner is entitled to claim rights and privileges provided in the State of Andhra Pradesh to Scheduled tribes. When once the petitioner is declared as Scheduled Tribe in the State of Maharashtra under Article 341 of the Constitution of India, accordingly following the clarification issued by the Central Government the third respondent passed the impugned order which is correct in accordance with the principles laid down by the Supreme Court in the decision in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India (supra). Therefore, I see no reason to interfere with the order of the third respondent and hence the writ petition is liable to be dismissed.
8. Accordingly, the writ petition is dismissed. No costs.