Patna High Court
Dr. Rajesh Kumar Paswan vs State Of Bihar And Ors. on 19 July, 1996
Equivalent citations: AIR1997PAT31, AIR 1997 PATNA 31, (1996) 2 BLJ 415
Author: Asok Kumar Ganguly
Bench: Asok Kumar Ganguly
ORDER Asok Kumar Ganguly, J.
1. Heard learned counsel for the parties.
2. In this writ petition some interesting questions of constitutional law arise from the undisputed facts of this case.
3. The petitioner's father Sri Ram Komal was originally a resident of Village -- Bhai-shali Buzurg, P. O. Kanaicha, District --Gorakhpur in the State of Uttar Pradesh and he belongs to caste 'Pasi'. The petitioner's father while working as Electric Loco Driver of the South Eastern Railways and posted at Tatanagar in the State of Bihar was alloted official quarters at Tatanagar in the month of April, 1979 and since then he has been living there. The petitioner who is the son of the aforesaid Sri Ram Komal did his schooling in St. Mary Hindi High School, Bishtupur and from there he passed S. S. Examination in 1985 in First Division. Thereafter, he did his I. S. C. from Jamshedpur Co-operative College in the examination conducted by the Bihar Intermediate Education Council, Patna through Ranchi University, Ranchi. Thereafter petitioner did his M.B.B.S. course from L. N. Mithila University.
4. The petitioner claims that he belongs to Pasi Community which is a scheduled caste community within the meaning of Scheduled Caste and Scheduled Tribes Amendment Act, 1950. This also appears from the caste certificate No. 7881 dated 7-6-1985 granted by the concerned authority as well as another caste certificate No. 42 dated 10-4-1996 granted by the Anchaladhikari, Jamshedpur and the Residence Certificate No. 23 dated 11-1-1988 granted by the Deputy Commissioner, Singh bhum (Chaibasa).
5. It is not in dispute that both in the State of Bihar and in Uttar Pradesh the said caste 'Pasi' falls in the category of scheduled caste. The petitioner stated in para 11 of the writ petition that throughout his academic career even upto the stage of his final M.B.B.S. course he has always rightly and validly been treated as a Scheduled Caste candidate. This fact has not been denied in the counter affidavit filed by the respondents.
6. The petitioner thereafter applied for admission for the course of Post Graduate Medical in Medical Colleges of the State of. Bihar by obtaining application form and post Graduate Medical Admission Test Prospectus, 1996 and appeared in the test on 14th January, 1996 for the purpose of admission in the said course. His roll number was 5326. The result of the said test was declared in the last week of March, 1996 and the petitioner was declared successful. His position in the merit list shown as 20th in S. C. category candidates. Thereafter the petitioner was required to appear before the appropriate authority for verification of original documents and certificates. The petitioner appeared personally in the Indira Gandhi Institute of Medical Sciences, Patna along with the original documents and certificates on 26th April, 1996 for counselling and for verification of the aforesaid original documents. The date of counselling was changed from 26th April, 1996 to 4th June, 1996. On that date also the petitioner appeared with the required documents, but the petitioner was shocked and surprised to know that the authority concerned rejected the petitioner's claim for admission in Post Graduate Medical course on the ground that he is a resident of U.P. and he cannot be given the benefit of Pasi community which is the scheduled caste community in the State of U. P. As a result of the aforesaid decision being taken by the authority his position in the merit list sided down and the petitioner was denied admission in the medical course though he occupied 20th position in the list among scheduled caste candidate.
7. Learned counsel appearing on behalf of the respondents filed a counter affidavit in which the factual position asserted by the writ petitioner in the writ petition has not been denied. The only ground on which counsel for the respondents relied in the course of his argument and in his counter affidavit has been stated in Para-4 which is set out below :--
Para-4 That for the proper adjudication of the case the relevant fact are as follows -
a. That the petitioner is a permanent resident of village -- Bhaishali Buzurg, District Gorakhup in the State of Uttar Pradesh. The petitioner belongs to caste pasi which comes under the scheduled caste category.
b. That the petitioner's father Sri Ram Kamal is a permanent Central Government employee of South Eastern Railway and since 30-4-1979 he is posted as Electric Driver at Taranagar, district -- Singhbhum (East) State of Bihar.
c. That the petitioner has applied and appeared at the post graduate course Admission Test, 1986 on 14-1-1996 under Schedule Caste category candidates.
d. That the petitioner was declared successful and directed to appear for verification of original documents for admission in different post graduate posts.
e. That during verification of certificate it was found that the petitioner belongs to Schedule/Pasi caste from the State of Uttar Pradesh and as such he is not entitled to take benefits of the reservation in the State of Bihar.
f. That a Constitutional bench of Hon'ble Supreme Court in writ petition (Civil) No. 989 of 1989 decided on May 2, 1990 reported in (1990) 3 SCC 130 has held that the expression used under Article 341 and 342.
"In relation to the state would become nugatory if in all States the special privileges or the rights granted to Schedule Castes or Scheduled Tribes are carried to forward."
8. Counsel for the respondents, however, did not dispute that caste Pasi is in the category of Scheduled Caste in Bihar as well as in U. P. also, but even then the stand taken by the respondents is that the petitioner cannot get the benefit of belonging to the scheduled caste in Bihar. In support of his contention reliance was placed on a constitutional Bench Judgment of the Supreme Court in the case of 'Marri Chandra Shekhar Rao v. Dean Seth G. S. Medical College reported in (1990) 3 SCC 130. In the aforesaid case the petitioner was born in Tenali in the State of U. P. and in that case a claim was made that the petitioner belongs to Gouda community which was recognised as Scheduled Tribe in U. P. Thereafter, the petitioner's father migrated to Maharashtra and the petitioner completed his education in Maharashtra, but the petitioner was denied admission to M.B.B.S. course in any of the medical colleges of Maharashtra in Scheduled Caste category on the ground that he does not belong to any scheduled caste/ scheduled tribes in the migrated state of Maharashtra, It is therefore clear from reading of the Supreme Court judgment that 'Gouda' was not recognised as a Scheduled tribe in Maharashtra.
9. In the said constitutional Bench decision of the Supreme Court, the learned Judges upheld the decision taken by the Medical College authorities.
10. The most distinguishable feature in this case is that here Pasi community is considered as belonging to Scheduled Caste both in U. P. and in Bihar, whereas, Gouda community which was considered to be Scheduled Tribe in Andhra Pradesh was not recognised as belonging to Scheduled Tribe in Maharashtra. In the context of those factual details, the learned Judges of the Supreme Court upheld the stand taken by the authorities of the Medical Colleges, but while dealing with the question in para 13 of the judgment, it has been stated as follows :--
"It, however, appears to us that the expression 'for the purpose of this Constitution' in Article 341 as well as in Article 342 do imply that the Scheduled Castes 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 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. Neither Article 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates."
11. In this case it is not in dispute that the petitioner migrated to the State of Bihar only for claiming any special rights and privileges inasmuch as admittedly the petitioner is treated as belonging to Scheduled Caste in Bihar also. Therefore, no new right and special privilege is claimed by the petitioner while seeking admission to the course of Post-Graduate Medical College in Bihar. It goes without saying that the petitioner has fundamental right under Article 19 (1)(e) of the Constitution to reside and settle in any part of India, and the said right of the petitioner cannot be denied. It cannot be said that the petitioner wanted to settle in the State of Bihar just to get admission to the P. G. Medical Course or by the said settlement in the State of Bihar, he is seeking any special privilege or special right. If the Pasi community to which the petitioner belongs were not recognised as Scheduled Caste in Bihar then the judgment in Marri Chandra Shekhar Rao, (1990) 3 SCC 130 (supra) would have fully covered this case.
12. Here the petitioner has got his early education from the lower classes of the School in the State of Bihar. As he has got education throughout in Bihar and his caste is treated as Scheduled Caste in Bihar, the benefit of belonging to that caste cannot be denied to him when he is seeking admission to P. G. Medical Course.
13. In that view of the matter, the decision taken by the respondent-authorities not to give admission to him on the ground that the petitioner cannot get the advantage of belonging to Scheduled Caste candidate as a member of Pasi caste which is recognised as Scheduled Caste in U. P as well as in Bihar, is wholly erroneous and cannot be sustained.
14. Therefore, the respondent No. 3 is directed to consider the case of the petitioner for admission in Post-Graduate Medical Course by treating him as belonging to Scheduled Caste, inasmuch as, the Pasi Caste is also recognised as Scheduled Caste in Bihar. Necessary formalities relating to the admission of the petitioner to the Post-Graduate Medical Course by treating him as belonging to the Scheduled Caste be completed by the appropriate authority within a period of two weeks from the date of receipt/ communication of a copy of this order.
This writ petition is allowed to the extent indicated above. There will be no order as to costs.