Madras High Court
P.Ameechand vs The Government Of Tamil Nadu on 29 September, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/09/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.7879 of 2010 and M.P.(MD)NOS.2 AND 3 OF 2010 P.Ameechand .. Petitioner Vs. 1.The Government of Tamil Nadu represented by the Secretary, Public Health Department, Fort St. George, Chennai-600 009. 2.Secretary, Selection Committee, Directorate of Medical Education, 162, Periyar E.V.R. High Road, Kilpauk, Chennai-600 010. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records from the second respondent leading to place the petitioner AR No.17285 in the provisional merit list for MBBS/BDS 2010-2011 Session in the general category OC without assigning Common Rank and quash the same and to consequently direct the second respondent to place the petitioner AR No.17285 category allotting his respective common rank in the provisional merit list for MBBS/BDS 2010-2011 session in BC and to direct the second respondent to reserve a seat for admitting the petitioner AR No.17285 in MBBS. !For Petitioner ... Mr.R.A.Mohanram ^For Respondents ... Mr.G.Sankaran, Spl.G.P. - - - - :ORDER
The petitioner is an aspirant for getting an admission in the MBBS Course starting from the academic year 2010-2011. The petitioner claims that he was a native of Rajasthan State born on 20.05.1989 and was domiciled at Madurai for more than 15 years. He was also studying at Madurai. He belongs to backward class in Rajasthan. The petitioner's community finds a place in a list of backward classes in Rajasthan at serial No.31 (Kumbar (Prajapati), Kumavath and Suaara). His community was shown in the school certificate as Prajapat. Therefore, he had applied under the backward class quota. He has also enclosed a school certificate.
2.He also claims that he is physically handicapped and has produced a certificate from the competent authority. In his application form, in column 19(a) he had clearly stated that he had applied for special category and his Special Code No.04 relates to Physically Handicapped. The petitioner also stated that in the special category, merit list was published for MBBS for 2010-2011 in the web site and his name appeared in Rank Number 12813 and his total mark was shown as 162. Since he has not been given any selection either under the Backward class category or under the Physical disablement category, he has come forward to file the present writ petition.
3.His contention was that though 51 seats were announced for OBC category, his name was not found place. Though he got 162 marks, the candidates who got upto 157 marks were selected. Therefore, he ought to have been considered under the Backward class category. He has further contended that non consideration of his name in the Backward class category is not valid.
4.In the writ petition, notice of motion was ordered on 28.6.2010. There was a direction to the respondents to keep one seat vacant. Pending writ petition, this court directed the respondents to permit the petitioner to attend the counselling. 5.During the course of argument, the learned counsel for the petitioner also contended that in the absence of candidate's name being considered against OBC quota, at least he should have been considered under the physically handicapped quota for which he is eligible. But, in the affidavit filed in support of the writ petition, there is no averment that he should have been considered against physically disablement quota. Even in his representation to the Selection Committee which is enclosed in page 18 of the typed set, there is no such reference. Further, there is no averment that he made any special application for such consideration.
6.After notice from this court, the respondents have filed a counter affidavit, dated 5.7.2010. It is admitted in paragraph 3 of the counter that he had applied for MBBS course under Physically Handicapped quota and he had secured 162 marks. But, with reference to the allegation of non consideration, in paragraphs 5,8 and 9, it was averred as follows:
"5.Candidates claiming special category (Physically challenged, Eminent Sportsperson, Children of Ex-Servicemen and Children of Freedom Fighter) should apply in the prescribed format for special category and also to General Category separately (i.e., they have to submit two applications one for general category and another one for special category) and submit both the applications to the Secretary, Selection Committee, Chennai, if not they will not be considered for admission to MBBS/BDS course for General and Special Categories.
(i)Candidates applying under Special Category should apply in the application form prescribed for Special Categories which could be obtained on payment of Rs.100/- in the form of Demand Draft drawn in favour of the Secretary, Selection Committee, Chennai-10, payable at Chennai, for each special category subject to the maximum of three special categories.
(ii)Separate Special Category application should be used for each special category. However the candidates applying under Ex-servicemen and Physically challenged special categories will be considered for both MBBS and BDS courses.
They need not apply separately for BDS course.
......
8.Further it is submitted that the petitioner already to furnish a representation to Selection Committee office on 21.06.2010 herein he has not applied for the Special Category application as he was unaware of it.
9.It is submitted that as per the prospectus 2010-2011 session the petitioner application cannot be considered for Special Category, but will be included the merit of General Category."
7.Therefore, it can be safely concluded that though the petitioner claims to consider his name against Physically Handicapped quota, he did not make proper application. Therefore, he was not considered. Hence that contention cannot be accepted.
8.In respect of the other contention that he should be considered under the OBC category, it must be noted that the petitioner's community did not find a place in the list of BC categories published by the State Government. Under Article 15 of the Constitution of India, it is the State Government which has to identify the list of socio economic backward classes and such identified members belonging to that class only will have the benefit of reservation. The petitioner is only a migrant from Rajasthan. Due to such migration, he will not carry the criteria of socio economic backwardness identified by the State of Tamil Nadu.
9.The Supreme Court has categorically held that migration from one State to another State will not carry the eligibility for consideration of reservation faced in that State into the migrated State. Though the counsel for the petitioner contended that in the All India quota, the OBCs of all States are considered, but that was based on different consideration, because selection has been made at the Central level. It is not the case of the petitioner that he had applied under the All India quota.
10.The Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College reported in (1990) 3 SCC 130 has held in paragraphs 13, 21 and 22 as follows:
"13. .... 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 or part thereof. If that right is not given in the migrated State it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession.....
.......
21. We have reached the aforesaid conclusion on the interpretation of the relevant provisions. In this connection, it may not be inappropriate to refer to the views of Dr B.R. Ambedkar as to the prospects of the problem that might arise, who stated in the Constituent Assembly Debates in reply to the question which was raised by Mr Jai Pal Singh12 which are to the following effect:
"He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local government, within whose jurisdiction he may be residing, the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter 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 his 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...."
22. In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admitted as being domicile does not fall for consideration."
11.Further, the Supreme Court in Action Committee on Issue of Caste Certificate to SCs/STs v. Union of India, (1994) 5 SCC 244 in paragraph 16 observed as follows:
"16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule 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 have 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......"
12.Though these judgments were given in the context of privilege and right conferred on the SC, the ratio will squarely apply even more vigorously to the claim made by the claimant.
13.In the light of the above, the contentions raised by the petitioner are without substance and a direction sought for by the petitioner cannot be granted. The petitioner has no enforceable right for the grant of such direction. Hence the writ petition is misconceived and bereft of merits. Accordingly, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Government of Tamil Nadu represented by the Secretary, Public Health Department, Fort St. George, Chennai-600 009.
2.Secretary, Selection Committee, Directorate of Medical Education, 162, Periyar E.V.R. High Road, Kilpauk, Chennai-600 010.