Sunil Kumar Paswan vs The State Of Jharkhand on 8 April, 2021

[Cites 50, Cited by 0]

Jharkhand High Court

Sunil Kumar Paswan vs The State Of Jharkhand on 8 April, 2021

Equivalent citations: AIR 2021 JHARKHAND 132, AIRONLINE 2021 JHA 380, 2021 (2) AJR 754

Sunil Kumar Paswan, aged about 45 years, son of Shri Parmeshwar Paswan, Mayer, Giridih Municipal Corporation, resident of At Shitalpur Sirsiya, PO Sirsiya, PS Giridih Muffasil, District-Giridih, Jharkhand ... ... Petitioner

---V E R S U S---

1.The State of Jharkhand, through its Chief Secretary, Goverment of Jharkhand, at Project Building, Dhurwa, PO and PS Dhurwa, District-Ranchi (Jharkhand)

2.Secretary, Department of Women, Child Development and Social Security, Government of Jharkhand, at Project Building Dhurwa, PO and PS Dhurwa, District Ranchi (Jharkhand)

3.Secretary, Department of Schedule Tribe, Schedule Caste, Minority and Backward Class Welfare, Government of Jharkhand, at Project Building, Dhurwa, PO and PS Dhurwa, District-Ranchi (Jharkhand)

4.Secretary, Department of Personnel, Administration and Rajbhasa, Government of Jharkhand, at Project Building Dhurwa, PO and PS Dhurwa, District-Ranchi (Jharkhand)

5.The Tribal Welfare Commissioner cum Member Secretary, Scrutiny Committee, Welfare Department, Government of Jharkhand, At+PO+PS-Dhurwa, District Ranchi

6.Sri Premchand Murmu, son of not known to petitioner, Member, Caste Scrutiny Committee, Government of Jharkhand, At+PO+PS- Dhurwa, District Ranchi

7.The Secretary, Government of Jharkhand, Urban Development and Housing Department, at Project Building, Dhurwa, PO and PS Dhurwa, District-Ranchi (Jharkhand)

8.The Additional Secretary, Government of Jharkhand, Urban Development and Housing Department, at Project Building Dhurwa, PO and PS Dhurwa, District-Ranchi (Jharkhand)

9.The Municipal Commissioner, Municipal Corporation, Giridih, At+PO+PS+District Giridih, Jharkhand

10.The Deputy Commissioner, Giridih, At+PO+PS+District-Giridih, Jharkhand

11.The Sub Divisional Officer, Giridih, At+PO+PS+District-Giridih, Jharkhand

12.The Circle Officer, Giridih, At+PO+PS+District-Giridih, Jharkhand ......Respondents 2 PRESENT:

HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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     For Petitioner           :        Mr. Binod Singh, Advocate
     For the State            :        Mr. Sachin Kumar, AAG-II
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CAV on 01.03.2021                          PRONOUNCED ON : 08/04/2021

Heard Mr. Binod Singh, the learned counsel for the petitioner and Mr. Sachin Kumar, the learned A.A.G.-II appearing on behalf of the respondent State.

2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-

video and with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for quashing the order dated 31.05.2019 issued by the Caste Scrutiny Committee. The further prayer is made for quashing the order dated 17.08.2019 as well as the order dated 17.08.2020 and for quashing the memo no.2290 dated 17.08.2019 and whereby the respondent no.9 has cancelled the caste certificate No.JHCC/2018/21640 dated 17.03.2018. The further prayer made is for quashing letter dated 14.08.2020 whereby the Municipal Corporation was directed to send the recommendation that the petitioner is ineligible to hold the post of Mayor and further it has been stated that the petitioner is ineligible under Rule 3.16 of Jharkhand Municipality Elected Representative (Discipline and Appeal) Rules, 2020. Quashing of letter dated 17.08.2020 has also been prayed whereby in reference to letter No.2026 dated 14.08.2020 the Municipal Corporation has sent the recommendation. The letter dated 28.08.2020 has also been 3 sought to be quashed issued to the petitioner under Rule 3.16 of the Jharkhand Municipality Elected Representative (Discipline and Appeal) Rules, 2020.

4. The petitioner is stated to be local resident of district Giridih has been residing there since his childhood and has also completed his education from primary school to B.A.(Part-II) from the district of Giridih. The local resident certificate as well as the caste certificate have been issued by the competent authority, Giridih district administration on different dates and before the existence of the State of Jharkhand. The Government of Jharkhand has framed the local resident policy by Resolution dated 18.04.2016. The father of the petitioner was in service of the erstwhile State of Bihar (undivided). He was working as a Manager in the Vyapar Mandal Division in the district of Giridih and he remained posted in Giridih since 1985 to till his retirement in the year 2000. For the first time, the caste certificate was issued in favour of the petitioner for the purpose of taking admission under the reserved category (scheduled caste) and on the basis of the same scholarship was also given to the petitioner. The petitioner, having inclination towards social service and political field and as such he wanted to contest the election for the post of Mayor in Sirsiya Panchayat within the district of Giridih. He made an application for issuance of caste certificate in his favour which was issued in favour of the petitioner vide Caste Certificate No.6323 dated 23.10.2010 by the Block Development Officer, Giridih. The post of Mukhiya in Sirsiya panchayat was reserved for woman category and the petitioner was unable to contest the election.

Later on the Sirsiya panchayat became the part of Giridih Municipal Corporation when the Giridih Municipality was notified as Giridih 4 Municipal Corporation. The further caste certificate was required to be submitted for contesting election and for that the petitioner got issued the fresh caste certificate for filing his nomination and the petitioner filed the same and got elected for the post of Mayor for that Municipal Corporation. While the petitioner was elected and thereafter the caste certificate of the petitioner was cancelled.

Aggrieved with this, the petitioner has filed this writ petition and subsequently, the other developments, and that is why, the petitioner has challenged the other orders also in the writ petition.

5. Mr. Binod Singh, the learned counsel appearing on behalf of the petitioner submitted that the respondent authority issued the caste certificate thrice and the permanent residential certificate in favour of the petitioner as well as in favour of the wife of the petitioner and in favour of the other family members of the petitioner which are still in existence and are operative, however, only the caste certificate no.JHCC/2018/51640 dated 09.03.2018 has been cancelled. He further submitted that the petitioner contested the election for Member, Panchayat Samitee in the year 2005 and for that he has filed nomination for reserved constituency which was reserved for the SC category and has obtained a fresh caste certificate. He made an application and accordingly, that certificate was issued on 26.10.2015 in favour of the petitioner.

The same was never questioned. In the year 2018 the Giridih Municipality was reconstituted as Giridih Municipal Corporation, Giridih. The post of Mayor of that Corporation was reserved for the SC candidate. The petitioner being the member of scheduled caste had to submit a fresh caste certificate as per the requirement. The said caste certificate, as prayed, was issued in favour of the petitioner. Mr. Binod Singh, the learned counsel further submitted 5 that the Caste Scrutiny Committee has got no power, authority or jurisdiction to cancel the caste certificate of the petitioner. It is submitted that it is an admitted case that the petitioner is by caste 'Dusadh' which is a scheduled caste as per the Presidential Order of 1950 published in the Gazette of India Notification dated 10.08.1950. He submitted that there is no dispute with regard to the caste of the petitioner. He submitted that the Department of Urban Development and Housing has issued the letter dated 09.03.2018 wherein the procedure to issue the caste certificate and the residential certificate has been described. He submitted that this letter supports the contention of the petitioner. The petitioner had filed the nomination annexing the caste certificate. The petitioner was allotted the symbol and the result of the election for the post of Mayor was declared and finally he was declared as a "returning candidate". He submitted that the petitioner was an authorized candidate of a political party. The election was conducted in the light of the rules of the Nagarpalika Election Rules. He submitted that the competent authority has given the certificate of "return candidate" to the petitioner. Thereafter, the respondent concerned has recommended for cancellation of his caste certificate No.JHCC/2018/5/640 to the Tribal Welfare Commissioner-cum-Member Secretary, Caste Scrutiny Committee, Government of Jharkhand. He submitted that this was done without providing any opportunity of hearing to the petitioner. He submitted that everything has happened in the back of the petitioner. He submitted that this was a calculated effort. He submitted that by Memo no.796 dated 31.05.2019, the Caste Scrutiny Committee has cancelled the caste certificate of the petitioner. He submitted that the said Committee has got no power, authority or jurisdiction to 6 pass the order of cancellation. Pursuant to the recommendation of the Caste Scrutiny Committee, the Circle Officer has cancelled the caste certificate dated 17.03.2018. He submitted that the impugned order passed on 31.05.2019 whereas it was served upon the petitioner on 17.07.2019. He submitted that only a Notice dated 24.09.2018 has been sent to the petitioner informing him to appear on 28.09.2018. According to him, the petitioner applied for getting a fresh caste certificate before the competent authority. He submitted that the opponents of the petitioner have manipulated all these things to snatch the elected seat from the petitioner. He submitted that the election can be questioned by the election petition only and the entire action is mala fide and malice in law.

He submitted that the mandate cast upon the Caste Scrutiny Committee and the law laid down in the case of "Madhuri Patil v.

Commr., Tribal Development", (1994) 6 SCC 241 was required to be followed which has not been followed. He referred to paragraph nos.6, 13(5), 13(6) and 13(7) of the said judgment, which are quoted hereinbelow:

"6. The appellants' Writ Petition No. 1849 of 1993 was dismissed by the Division Bench by its order dated 17-8-1993 with brief reasons. Shri Ganesh, the learned counsel for the appellants contended that in the affidavit filed by the appellant's father before the Verification Committee he has explained the circumstances in which he came to be described as Hindu Koli. Prior to 1950, there was no necessity to describe sub-caste. For the first time in 1976 under the Scheduled Castes Scheduled Tribes (Amendment) Act, 1976, Mahadeo Koli was introduced as a Scheduled Tribe in the State of Maharashtra. The certificates issued to the maternal uncle Balakrishna Naik as Mahadeo Koli in the year 1954 and entries in his service record and to maternal aunt, Jyotsana in the year 1979 probabilise the omission to describe Laxman Patil as Mahadeo Koli, though they, as a fact, belong to Scheduled Tribe. In the school registers the appellants had enjoyed the status as Scheduled Tribe which 7 provides probative value. The Committee, the Additional Commissioner and the High Court had not appreciated the evidence in proper perspective before declining to confirm the social status of the appellants as Scheduled Tribes and the High Court ought to have gone into these aspects as was done in Subhash Ganpatrao Kabade case. It is further contended that Suchita has completed her final year course of study. Madhuri is in midway and that, therefore, justice demands that their education should not be dislocated with the denial of the social status as Scheduled Tribes. The sheet-anchor for the counsel's argument is the judgment of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case. We find no force in the contentions.

13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:

(5) Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or 8 the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. (6) The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine"

or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.

(7) In case the report is in favour of the 9 candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed."

6. He submitted that the enquiry was required to be conducted by the Officer not below the rank of Deputy Superintendent of Police. He submitted that this has been done without providing any opportunity of hearing to the petitioner which is violation of the principles of natural justice and the direction of the Hon'ble Supreme Court in the case of "Madhuri Patil v. Commr., Tribal Development", [supra] in paragraph no.7 of the said judgment which is quoted hereinbelow :

"7. From the counter-affidavit filed by the State which has not been disputed by filing any rejoinder and as is borne out from the public notification issued by the President in the year 1950 in exercise of the power under Article 342 read with Article 366(25) of the Constitution that Mahadeo Koli is declared as a Scheduled Tribe. Article 366(25) defines Scheduled Tribes, as meaning such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are declared under Article 342 to be Scheduled Tribes for the purposes of the Constitution. Article 342 gives power to the President to specify the tribe with respect to any State or Union Territory, after consultation with the Governor where it is a State, 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 the Constitution, be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.

7. At the cost of repetition, he further submitted that the Caste Scrutiny Committee has got no power, authority or jurisdiction to pass the impugned order. He submitted that disqualification of a person to hold the office as Councillor is required to be in terms of Section 18(1) of Jharkhand Municipal Act, 10 2011. He further submitted that the petitioner has filed the writ petition being W.P.(C) No.2325 of 2020 for declaring the Rule 3.16 as ultra vires to Section 18(1) of Jharkhand Municipal Act, 2011 as amended by the Jharkhand Municipal (Amendment) Act, 2017, which has been dismissed by the Full Bench on 12.02.2021. He further submitted that the Rule, 2020 of Jharkhand Municipal Elected Representative (Discipline and Appeal) Rules was notified on 28.07.2020 which was published in the Gazette on 03.09.2020 and the impugned orders have been issued on 14.08.2020, 17.08.2019 and 28.08.2020. The Municipal Commissioner has recommended that the petitioner is ineligible under Rule 3.16, 4.1 and 4.2 of the said Rules for the post of Mayor. He submitted that the impugned order has been issued without publication of the said rules. He further submitted that one another political party General Secretary has filed an application on 04.10.2019 before the Commissioner for cancellation of election of the petitioner for the post of Mayor Giridih Municipal Corporation. He referred to Annexure-1 series in the writ petition which are the earlier caste certificate and the residential certificate issued in favour of the petitioner. He also referred to the educational certificate issued by the institutions where the petitioner has studied. By way of referring the Gazette Notification dated 18.04.2016 he submitted that the domicile was decided. He further submitted that by Notification dated 22.05.1975, the case of migration was required to be considered. He further relied in the case of "Sudhar Vithal Kunbhare v. State of Maharashtra and Others", (2004) 9 SCC 481, paragraph nos.5 of the said judgment is quoted hereinbelow:

"5. But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered 11 disadvantages and been denied facilities for development and growth in several States. They require protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, a part of which, on States' reorganisation, has come to the State of Maharashtra, was entitled to the benefit of reservation. It is one thing to say that the expression "in relation to that State"

occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganisation Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe Halba/Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind."

8. He further relied in the case of "B.K. Srinivasan and Others v. State of Karnataka and Others", (1987) 1 SCC 658, paragraph nos.17 and 18 of the said judgment is quoted hereinbelow:

17. Shri Cooper invited our attention to Shalagram Jhajharia v. National Co. Ltd. and Firestone Tyre & Rubber Co. v. Synthetics and Chemicals Ltd. to urge that offer of inspection cannot be a substitute for publication. We do not think that these two cases are of assistance to Shri Cooper. What was laid down in those cases was the mandatory requirement of a full and frank disclosure of the relevant facts, in the explanatory note attached to the notice convening a general meeting of the company cannot be circumvented by an offer of inspection. Another case to which Shri Cooper drew our attention was Municipal Board, Pushkar v. State Transport Authority, Rajasthan. In that case the question arose as to what was to be treated as the date of the order of the Regional Transport Authority. Was it the date of the resolution of the Regional Transport Authority or was it the date on which the resolution was brought into effect by publication of the notification? The answer was that it was the date of the publication of the notification. In Joint Chief Controller of Imports & Exports, Madras v. Aminchand Mutha another case on which Shri Cooper relied, the court held that there was no order prohibiting the import of fountain pens, since in fact no such order had been published and no such order was brought to the notice of the court. All that was available was an entry "nil" against fountain pens in the declaration of policy as to import. We are unable to see how these two cases can be of any help to Shri Cooper.

Shri Cooper also invited our attention to cases drawing a distinction between mandatory and directory statutory requirements but those cases again are of no avail to him in the view that we have taken. We also desire to state that the effect of the non-performance of a duty imposedby a statute in the manner prescribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directory. These are not simple chemical reactions. The question whether a statutory requirement is mandatory or directory cannot itself be answered easily as was 13 pointed out more than a century ago in Liverpool Borough v. Turner. Many considerations must prevail and the object and the context are the most important.

18. The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by Section 76-J, the Omnibus Curative clause to which we earlier made a reference as the "Ganga" clause. Provisions similar to Section 76-J are found in several modern Acts and their object is to put beyond challenge defects of constitution of statutory bodies and defects of procedure which have not led to any substantial prejudice. We are inclined to agree with the High Court that a defective publication which has otherwise served its purpose is not sufficient to render illegal what is published and that such defect is cured by Section 76-J. The High Court relied on the two decisions of this Court Bangalore Woollen, Cotton & Silk Mills Co. Ltd. v. Corporation of the City of Bangalore and Municipal Board, Sitapur v. Prayag Narain Saigal & Firm Moosaram Bhagwandas. In the first case objection was raised to the imposition of octroi duty on the ground that there was failure to notify the final resolution of the imposition of the tax in the Government Gazette as required by Section 98(2) of the City of Bangalore Municipal Corporation Act. A Constitution Bench of the court held that the failure to publish the final resolution in the Official Gazette was cured by Section 38(1)(b) of the Act which provided that no act done or proceeding taken under the Act shall be questioned merely on the ground of any defect or irregularity in such act or proceeding, not affecting the merits of the case. The Court said that the resolution had been published in the newspapers and was communicated to those affected and failure to publish the resolution did not affect the merits of its imposition and failure to notify the resolution in the Gazette was not fatal to the legality of the imposition. In the second case it was held that the non-publication of a special resolution imposing a tax was a mere irregularity, since the inhabitants had no right to object to special resolutions and had otherwise clear notice of the imposition of the tax. It is true that both these cases relate to non-

publication of a resolution regarding imposition of a tax where the imposition of a tax was otherwise well known to the public. In the present case the situation may not be the same but there 14 certainlywas an effort to bring the Plan and Regulations to the notice of the public by giving notice of the Plan in the Official Gazette. Non- publication of the Plan in the Official Gazette was therefore a curable defect capable of being cured by Section 76-J. It is here that the failure of the appellants to plead want of publication or want of knowledge in the first instance assumes importance. In the answer to the writ petitions, the appellants took up the substantial plea that they had complied with the requirements of the Outline Development Plan and the Regulations but not that they had no knowledge of any such requirement. It can safely be said that the defect or irregularity did not affect the merits of the case."

9. He further relied in the case of "Collector of Central Excise v. New Tobacco Co. and Others", (1998) 8 SCC 250, paragraph nos.4,5,6,7 and 8 of the said judgment are quoted hereinbelow:

"4. Section 38 of the Act provides that all the rules made and notifications issued under the Act shall be published in the Official Gazette. So, the requirement of Section 38 is publication of the rules and the notifications in the Official Gazette. The dictionary meaning of the word "publish" as given in Webster's Comprehensive Dictionary, International Edn., is "(1) To make known or announce publicly; promulgate; proclaim. (2) To print and issue to the public. (3) To communicate to a third person".

According to the Legal Glossary, published by the Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India in 1992, it means "to make generally accessible or available; to place before or offer to public; to bring before the public for sale or distribution". Thus the word "publish" connotes not only an act of printing but also further action of issuing or making it available to the public. Notification, according to Webster's Third New International Dictionary, inter alia means "1. the act or an instance of notifying: Intimation, Notice; est: the act of giving official notice or information; 2. a written or printed matter that gives notice". The Legal Glossary, referred to above, defines it as "a written or printed matter that gives notice". Even if we go by the dictionary meaning the requirement of publishing the notifications would 15 connote that what is intended to give notice or information to the public can be treated as published only when it is made available to the public so that they can know about it. The requirement of publishing the notifications in the Official Gazette, which is an official journal or a newspaper containing public notices and other prescribed matters, also indicates that the word "publish" in Section 38 should be so interpreted.

5. We will now refer to the decisions to which our attention was drawn by the learned counsel. In Harla v. State of Rajasthan the facts were that a Council of Ministers, appointed to look after the Government and Administration of Jaipur State during the Maharaja's minority, passed a resolution which purported to enact the Jaipur Opium Act and the question which had arisen for consideration of this Court was whether the mere passing of the resolution without promulgation or publication in the Gazette or other means as known to the public was sufficient to make it law. This Court referred to the rule prevailing in this behalf in England that Acts of Parliament become law from the first moment of the day on which they received the Royal assent, but the Royal proclamations only when actually published in the Official Gazette and cited with approval the decision in Johnson v. Sargant & Sons wherein it was held that the order of the Food Controller did not become operative until it was made known to the public. This Court also noticed that "nor is the principle peculiar to England". It was applied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their promulgation can have been known". It also pointed out that such a rule has applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules. It then made an important observation that this rule was only an application of a deeper rule which is founded on natural justice. It has further observed that "it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some 16 recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential".

Taking this view this Court held that a resolution of the Council of Ministers in Jaipur State without publication was not sufficient to make the law operative.

6. In State of Maharashtra v. Mayer Hans George what had happened was that a German smuggler left Zurich for Manila by a Swiss plane on 27-11- 1962 with 34 kilos of gold. He had not declared it in the manifest for transit. The plane arrived at Bombay on 28-11-1962. The passenger had remained in the plane. The Customs authorities, on search, recovered the gold carried by him on his person. He was prosecuted for importing gold into India in breach of Sections 8(1) and 23(1-A) of the Foreign Exchange Regulation Act and the notification dated 8-11-1962 of the Reserve Bank of India, which was published in the Gazette of India on 24th November. The respondent was convicted by the Magistrate but acquitted by the High Court. One of the contentions raised by him was that a notification being merely subordinate and delegated legislation could be deemed to be in force only when it was brought to the notice of the persons affected by it and that as the same was published in the Gazette only on 24-11-1962 whereas he left Zurich on 27-11-1962, he could not have had knowledge about the restrictions imposed by that notification. This Court rejecting that contention held that the notification was published and made known in India by publication in the Gazette and the ignorance of it by the accused who was a foreigner was wholly irrelevant and made no difference to his liability. Relying upon the decision it was contended by the 17 learned counsel for the respondent that it is the cardinal principle of the criminal jurisprudence that a person should not be convicted for an offence unless the person or persons affected by the prohibition are in a position to observe the law or to promote the observance of the law. The said observation was made by this Court in the context of mens rea being a necessary ingredient of the offence. In that very case this Court has observed that individual service of a general notification on every member of the public is not necessary and all that the subordinate law-making authority can or need do, would be to publish it in such manner that persons can, if they are interested, acquaint themselves with its contents.

7. In State of M.P. v. Shri Ram Ragubir Prasad Agarwal while interpreting the word "publish" in Section 3(2) of M.P. Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, this Court observed that:

(SCC p. 695, para 21) "In our view, the purpose of Section 3 animates the meaning of the expression 'publish'. 'Publication' is 'the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny ... an advising of the public; a making known of something to them for a purpose'. Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the 'syllabi' it must publish 'the same' so that when the stage of prescribing textbooks according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable textbooks from the private market or compiled under Section 5 by the State Government itself. In our view, therefore, 'publication' to the educational world is the connotation of the expression. Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom."

8. Following this judgment the Madras High Court in Asia Tobacco Co. Ltd. v. Union of India held 18 that in such cases the effective date is the date of knowledge and not the date of the Official Gazette. The relevant observations made in para 14 of the said judgment are as under:

"The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the 'notification' within the meaning of Rule 8(1) of the Rules. The intendment of the notification in the Official Gazette is that in the case of either grant or withdrawal of exemption the public must come to know of the same. 'Notify' even according to ordinary dictionary meaning would be 'to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform'. It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public. ... Neither the date of the notification nor the date of printing, nor the date of Gazette counts for 'notification' within the meaning of the rule, but only the date when the public gets notified in the sense, the Gazette concerned is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing the Official Gazette and stacking them without releasing to the public would not amount to notification at all. ... The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words 'publish in Official Gazette' and the words 'put up for sale to public' are not synonymous and offering for sale to public is a subsequent step which cannot be imported into the Act, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of the legal implications flowing from want of due notification, as exemplified above. Printing the notification in the Official Gazette, without making it available for circulation to the public concerned, or placing it for sale to the said public, would certainly not satisfy the idea of notification in the legal sense."

10. Per contra, Mr. Sachin Kumar, the learned A.A.G.-II 19 appearing on behalf of the respondent-State submitted that in paragraph no.7 of the writ petition the petitioner has admitted that the petitioner is residing in Giridih since his childhood and has also completed his education from primary school to B.A from Giridih.

By way of referring this, he has submitted that at best the respondent can say that the petitioner shifted to one district to another district in the same State i.e. unified Bihar and the district Giridih remained part of newly created State of Jharkhand. He further referred to paragraph no.9 of the writ petition and submitted that the father of the petitioner was working as Manager in Vyapar Mandal Division in Giridih and he remained posted in Giridih since 1985 to till his retirement in the year 2000. He submitted that the Caste Scrutiny Committee passed the order dated 31.05.2019 observing that the Caste Scrutiny Committee has mentioned about the proof that the ancestors house of the petitioner is in the village of Manhar, District Vaishali in the State of Bihar. The petitioner has not produced the caste certificate of his father issued by the State of his origin. The caste certificate was issued in favour of the petitioner against the procedure laid down by the Central Government. He invited the attention of the Court to Annexure-D series to the counter affidavit dated 19.01.2021 and submitted that the Central Government from time to time issued the instructions that the caste certificate of a migrant can be issued from any State to which he has migrated, but the caste certificate of the father has not been issued by the State of origin. He further submitted that the petitioner has not made any statement disputing the observation made by the Caste Scrutiny Committee that the caste certificate of the father was not produced by the petitioner.

He further submitted that the petitioner has not stated anywhere 20 that the father /forefathers were not the residents of Vaishali. He submitted that the caste certificate was issued without following the due procedure as held by the Caste Scrutiny Committee. He further submitted that the petitioner came to Giridih during the unified State of Bihar i.e. in the year 1985 and his father stayed in Giridih on the date bifurcation of erstwhile State of Bihar, the petitioner was permanent resident of Giridih, Jharkhand is falsified.

He further submitted that in the entire writ petition, the petitioner has nowhere stated that his father/forefathers were residing at Giridih on the date when the Presidential Notification was issued under Article 341 of the Constitution of India on 10.08.1995. The place of residence of the petitioner is not relevant in this regard. To buttress his this argument, he relied in the case of "Madhuri Palit"

[supra], paragraph nos.3, 4, 6 and 8 of the said judgment are quoted hereinbelow:

"3. 'Mahadeo Koli' was declared to be a Scheduled Tribe by Bombay Province as early as 1933 and the President of India declared in 1950 under Article 342, in consultation with the Government of Bombay (Maharashtra) and as amended from time to time. Laxman submitted the particulars along with his school and college certificates, junior college certificate and school certificates of the appellants, the certificates of his sister and appellants' maternal aunt, Jyotsana Pandurang Patil dated 3-3-1978 and maternal uncle Balakrishna Pandurang Naik dated 22-10-1954 and a statement by the Caste Association. The Committee in their order dated 26-6-1992 considered the entire evidence placed before them, the particulars furnished by their father in the pro forma on their ancestry and other anthropological particulars and after hearing their counsel, found that the appellants are 'Koli' by caste which is recognised as Other Backward Class, i.e., OBC in the State and that they are not 'Mahadeo Koli', the Scheduled Tribe and their claim for that social status was accordingly declared untenable. The certificates issued by the respective Executive Magistrates were cancelled and 21 confiscated. Their appeal provided under the Rules too was heard by the Additional Commissioner in Caste Appeal No. 11 of 1992 who by an elaborate order dated 30-4-1993 found that the certificate issued in favour of Balakrishna Pandurang Naik, maternal uncle, was from a Magistrate, Greater Bombay, who had no jurisdiction and was issued social status certificate without proper scrutiny. The certificate issued to Jyotsana by the Judicial Magistrate was on the basis of the school leaving certificate, ration card etc. and that, therefore, it does not provide any probative value to their status as Scheduled Tribe, the entries in school and college certificates of the appellants are not conclusive.

4. It is obvious that Judicial Magistrate has no jurisdiction to issue caste certificate and it is a void certificate. The entries in the school certificate of the father of the appellants, Laxman Patil, being pre-independence period, it bears "great probative value" wherein he declared himself to be 'Hindu Koli' which is now recognised as a backward class. The caste affirmation certificate issued by the Samaj "Caste Association" consists of these very communities who seek to get the status as Scheduled Tribes. It also does not, therefore, bear any probative value. School certificates and college certificates in favour of the appellants are the subject of enquiry, therefore, do not bear any value and independently their status is to be considered.

6. The appellants' Writ Petition No. 1849 of 1993 was dismissed by the Division Bench by its order dated 17-8-1993 with brief reasons. Shri Ganesh, the learned counsel for the appellants contended that in the affidavit filed by the appellant's father before the Verification Committee he has explained the circumstances in which he came to be described as Hindu Koli. Prior to 1950, there was no necessity to describe sub- caste. For the first time in 1976 under the Scheduled Castes Scheduled Tribes (Amendment) Act, 1976, Mahadeo Koli was introduced as a Scheduled Tribe in the State of Maharashtra. The certificates issued to the maternal uncle Balakrishna Naik as Mahadeo Koli in the year 1954 and entries in his service record and to maternal aunt, Jyotsana in the year 1979 probabilise the omission to describe Laxman Patil as Mahadeo Koli, though they, as a fact, belong to Scheduled Tribe. In the school registers the appellants had enjoyed the status as Scheduled Tribe which 22 provides probative value. The Committee, the Additional Commissioner and the High Court had not appreciated the evidence in proper perspective before declining to confirm the social status of the appellants as Scheduled Tribes and the High Court ought to have gone into these aspects as was done in Subhash Ganpatrao Kabade case. It is further contended that Suchita has completed her final year course of study. Madhuri is in midway and that, therefore, justice demands that their education should not be dislocated with the denial of the social status as Scheduled Tribes. The sheet- anchor for the counsel's argument is the judgment of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case. We find no force in the contentions.

8. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College, this Court declared that subject to the law made by Parliament under sub- section (2) of Section 342, the tribes or tribal communities or parts of or groups within tribes or tribal communities specified by the President by a public notification shall be final for the purpose of the Constitution. They are the tribes in relation to that State or Union Territory and that any tribe or tribes or tribal communities or parts of or groups within such tribe or tribal communities, not specified therein in relation to that State, shall not be Scheduled Tribes for the purpose of the Constitution. The father of one Chandra Shekhar Rao who hailed from Tenali in Guntur District of Andhra Pradesh is a Settibalija by caste which is recognised as a backward class. His father obtained a certificate from the Tahsildar, Tenali that he belonged to Scheduled Tribe and had got an appointment in a public undertaking of Bombay. On the basis of social status certificate obtained by his father and entries in service record of his father, he applied for admission into medical college as Scheduled Tribe. When he was not admitted, he filed the writ petition in this Court under Article 32 seeking a declaration that Settibalija though was not declared to be Scheduled Tribe in Maharashtra it was a Scheduled Tribe for the purpose of the Constitution and that he was entitled to the admission into the medical college on the basis of his social status as a Scheduled Tribe. This Court did not uphold the contention. This Court held that the declaration by the President by a public notification in relation to 23 a State in consultation with the Governor of that State is conclusive and court cannot give such a declaration. The same view was reiterated by another Constitution Bench in Action Committee on issue of Caste Certificate to SCs and STs in the State of Maharashtra v. Union of India."

11. He further submitted that the caste certificate on bifurcation granted by the State of Bihar has been considered by the Full Bench of this Court in the judgment rendered in the case of "Ranjit Kumar v. State of Jharkhand and Others" & Analogous cases, (2020) SCC Online Jhar. 210. Paragraph nos.57, 59, 60, 61, 62, 73, 74 and 81 are quoted hereinbelow :

"57. In the case of Bir Singh (supra), the question before the Apex Court was again posed for consideration in the following manner.

"Whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to Scheduled Caste candidate in the matter of employment, in any other State?"

59. However, it should not be lost sight of while dealing with the arguments of learned counsel for the petitioners herein, that both the majority judgment and partly concurring judgment of Justice Banumathi in the case of Bir Singh have made reference to the amendments made to the Presidential Order by the Parliament at the time of reorganization of the States including the State of Bihar.

60. It is contended by the writ petitioner that the decision of Sudhakar Vithal Kumbhare (supra) and Sau Kusum (supra) deal with the cases arising out of reorganization of the State. Writ petitioners have placed strong reliance on these decisions.

61. Sudhakar Vithal Kumbhare was a member of Scheduled Tribe known as Halba / Halbi which stood recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra. He was the resident of village Sawargaon, Post. Pandhurna district Chhindwara in the State of Madhya Pradesh. As a result of State reorganization, a part of the said district Chindwara being Chandrapur which was originally in the State of Madhya Pradesh, had gone into the State of Maharashtra. It was not in dispute that he was brought up and educated in the village Pandhurna / Chindwara district and had been appointed in Maharashtra Electricity Board against the 24 non-reserved vacancy on the post of Junior Engineer (Civil) on the basis of merit. In 1987 he was promoted to officiate as an Assistant Engineer (Civil) against a reserved vacancy on the basis of a caste certificate of Halba / Halbi caste issued by the competent authority of the State of Madhya Pradesh. However, later on, he was reverted to the post of Junior Engineer as he was held to be not entitled to the benefit of reservation for Scheduled Tribe in the State of Maharashtra. The Apex Court referred to the earlier decisions in the case of Action Committee (supra) and after acknowledging the legal position having regard to the plain expression "in relation to that State" in Article 342 of the Constitution, observed in the following terms.

"5...................... It is one thing to say that the expression "in relation to that State"

occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganisation Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe 25 Halba/Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind."

(emphasis supplied)

62. It is apparent from a reading of the above observation that the Apex Court having noticed the unique feature of the case wherein both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region as it originally stood, under the Constitution (Scheduled Tribes) Order, 1950, was of the opinion that the question was required to be referred before the Caste Scrutiny Committee established in the light of the judgment of the Apex Court in the case of Kumari Madhuri Patil (I) versus Addl. Commr., Tribal Development [(1994) 6 SCC 241]. The Apex Court observed that in a given case of this nature, the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganization might have agreed for inclusion of the said Tribe, Halba /Halbi as a Scheduled Tribe in the State of Maharashtra having regard to the said fact in mind. It therefore appears that the Apex Court, having regard to the distinctive feature of the case where P.O. Pandhurna under which village Sawargaon of appellant Sudhakar Vithal fell and a part of the area Chandrapur which at one point of time belonged to the same region (covered under the Constitution (Scheduled Tribes) Order 1950 as regards the Scheduled Tribe Halba / Halbi) and the possibility that the nature of degree of disadvantages of various element which constitute the input for specification may not be totally different in the successor State of Madhya Pradesh and Maharashtra upon reorganization, was persuaded to refer the question before the Caste Scrutiny Committee whether the appellant Sudharkar Vithal should get the same benefits despite bifurcation of the State in terms of States reorganization Act. The Apex Court however being aware of the legal position that a Scheduled Tribe notifed in one State may not be given the benefits thereof in another State within the meaning of Article 342 of the Constitution, refrained from issuing a general direction granting benefit of reserved category to the persons belonging to one of the States after bifurcation of the parent State in the other successor State despite the fact that Scheduled Tribe "Halba / Halbi‟ stood recognized by both the successor States after reorganization. Moreover, Sudhakar Vithal originally appointed as a Junior Engineer in unreserved category under Maharashtra Electricity Board, had sought promotion to the post of Assistant Engineer (Civil) claiming the benefit of reservation as a 26 Scheduled Tribe on the basis of a certificate of „Halba / Halbi‟, a Scheduled Tribe, issued by the competent authority of the State of Madhya Pradesh. It follows therefrom that the Apex Court in the case of Sudhakar Vithal Kumbhare (supra) did not lay down a general proposition of law that upon bifurcation of the State, the residents belonging to either of the successor State would be entitled to the benefit of reservation in both the successor States, as it would have been contrary to the legal position in respect of Article 341 and 342 of the Constitution of India, as per the decision rendered by the Constitution Bench of the Apex Court in the case of Action Committee (supra).

73. Apparently, the facts of the writ petitioners in LPA No. 282/2015 and analogous cases are not of migration from the State of Bihar to Jharkhand any time prior to bifurcation of the parent State of Bihar on 15.11.2000. In these cases, none of the territories under the districts of the parent State of Bihar underwent division as is evident from a reading of Section 3 and 4 of the Reorganization Act, as discussed hereinabove, as was the case in Sudhakar Vithal Kumbhare (supra). The writ petitioner in LPA No. 80/2018 has also not pleaded the case of migration from the State of Bihar. According to his case, he was permanently residing since 1989 in Ranchi. He has done his graduation at Ranchi. He was appointed as an Assistant Teacher by the erstwhile State of Bihar in the Scheduled Caste category on the basis of certificate issued by the competent authority falling in the area now under State of Jharkhand prior to bifurcation of the State. In the case of Sau Kusum, the appellant claimed to belong to the Carpenter Caste from Vidarbha, a border area of Madhya Pradesh and Maharashtra and that the caste of Carpenter was recognized as "Badhai‟ in Madhya Pradesh and „Sutar‟ in the State of Maharashra and considered as Other Backward Class. In none of the case of the present writ petitioners, the same fact situation emerges. There has been clear bifurcation of the regions or territorial divisions between the Successor State of Bihar and Jharkhand at the time of reorganization of the parent State of Bihar on 15.11.2000 as is evident from Section 3 and 4 of the Act of 2000. The district falling within the territorial division of Santhal Pargana have fallen within the State of Jharkhand, whereas the remaining districts adjacent thereto in other territorial division have been allocated to the successor State of Bihar. Therefore, the consequence befalling as a result of bifurcation of the parent State, as in the case of Sudhakar Vithal Kumbhare (supra) or Sau Kusum (supra), do not apply to the petitioners since they are residents of the territories falling 27 within the successor State of Bihar. Both the successor State of Bihar and Jharkhand have recognized the persons who were permanent residents of the territories falling within the successor State of Jharkhand or Bihar at the time of issuance of Constitution (Scheduled Caste) Order, 1950 or Constitution (Scheduled Tribes) Order, 1950 as entitled to the benefit of reservation in the respective States.

74. It has been noticed in the foregoing paragraphs that none of these writ petitioners have laid any challenge to the cut-off date fixed by the successor State of Bihar and Jharkhand for the purposes of treating the persons as permanent resident of their respective States for being entitled to the benefit of reservation under the Fifth and Sixth Schedule of Bihar Reorganization Act i.e. Amendment of the Constitution (Scheduled Castes) Order, 1950 and Amendment of the Constitution (Scheduled Tribes) Order, 1950. As has been distinctly held in the line of the decisions rendered by the Apex Court and reiterated in the case of Bir Singh (Supra) at para-34 that "Unhesitatingly, therefore, it can be said that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State „A‟ cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State „A". At para-36 of the report, Apex Court has concluded that the Presidential Orders issued under Article 341 in regard to Scheduled Castes and under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is Parliament alone which has been vested with the power to so act and that too, by laws made. Further, at para-38, quoted earlier, the Apex Court categorically held that power under Article 16(4) capable of being exercised by a legislative provision/enactment and also by an Executive Order issued under Article 166 of the Constitution has to be read harmoniously with Article 341/342 of the Constitution. The List of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Articles 341/342 can be subject to alteration only by laws 28 made by Parliament. State / Union Territories by exercise of enabling power vested by Article 16(4) cannot circumvent the specific provisions under Article 341/342 of the Constitution.

81. On the basis of the discussions made hereinabove, the reasons recorded and the position in law as declared by the Apex Court in the decisions referred to hereinabove, I am of the considered opinion that none of the writ petitioners are entitled to the benefit of reservation as Scheduled castes or Scheduled Tribes or OBC category candidate in the successor State of Jharkhand for the purposes of appointment under the State. However, the service conditions of those persons serving under the erstwhile State of Bihar and allocated to the State of Jharkhand after bifurcation are protected under section 73 of the Act of 2000. I am also unable to conform to the view taken by Brother Justice Mishra to accord the benefit of reservation to all persons covered under the Presidential Orders of 1950 in both successor States if they were born before 15.11.2000. Such a distinction would, in my humble opinion, fall flat of the specific law passed by the Parliament i.e. Bihar Reorganization Act which has amended the Presidential Orders of 1950 under Fifth and Sixth Schedule. For the same reason, it cannot be held that the benefit of reservation under the Presidential Orders under the Fifth and Sixth Schedule of Bihar Reorganization Act would be applicable only to those persons born after bifurcation of the State i.e. 15.11.2000 and are residents of either of the States. Such a classification on the basis of date of birth of a person before or after 15.11.2000 has no rational nexus with the object sought to be achieved. Presidential Orders of 1950 has been amended under Fifth and Sixth Schedule read with section 23 and 24 of Bihar Reorganization Act. Both the Successor States born on 15.11.2000 are sovereign in their fields. The State of Bihar became non- existent from 15.11.2000. The two Successor States created by a law passed by the Parliament being sovereign in nature, cannot be compelled to provide reservation to persons who or whose forefathers were not the residents of the territories falling within the area of the Successor States on the date of the Presidential Orders. Such a cut- off date for recognizing the claim of persons as being entitled to the benefit of reservation under the Presidential Orders, 1950 have not been challenged by the writ petitioners. As such, it does not lie within the jurisdiction of this Court to direct conferment of benefits of reservation in teeth of the provisions of Article 341 and 342 of the Constitution of India and the law laid down by the Parliament in exercise of the power under Article 29 341(2) and 342(2) of the Constitution of India, as has been clearly held in the case of Bir Singh (Supra).

12. By way of relying on this judgment, Mr. Sachin Kumar, the learned counsel for the respondent State submitted that the petitioner belongs to the area which now falls under Vaishali District which comes under the present State of Bihar as such, the petitioner's State of origin is State of Bihar and not State of Jharkhand. He further submitted that the petitioner can claim reservation in the State of Bihar and not in the State of Jharkhand.

He further submitted that even if the migrant obtains the caste certificate from the State to which he has migrated, the migrant does not become entitled for reservation from the State to which he has migrated. By way of repetition, he again argued, by way of referring Annexure-D series that the scope of adjudication to see as to whether the caste certificate was issued following the instructions of the Central Government. He again referred to paragraph no.13 of the case of "Madhuri Palit v. State of Maharashtra and Others" [supra] and submitted that it requires thorough enquiry before deciding the caste status of a person which has got no application in the present case. He further submitted that the caste certificate of the petitioner is not said to be forged or fake, but the procedure was not followed.

To buttress his argument, he relied in the case of "Meetu Pasi v.

National Commission For Scheduled Caste [W.P.(C) No.4922 of 2015]. Paragraph nos. 24 of the said judgment are quoted hereinbelow:

"24. By referring to the subsequent writ petition, counsel for the petitioner submit that the direction which was issued by this court vide order dated 24.07.2013 in W.P. (C) No. 2760 of 2010, was for the purpose of enquiry as to whether the petitioner was entitled to caste certificate which was issued in her favour, whether she was covered under the Presidential notification and whether the caste certificate issued to 30 her was fake. He further submits that vide proceeding dated 06.11.2013 before the caste scrutiny committee, it was observed that the petitioner has come from the State of Punjab, and the caste certificate from the State where the person has migrated, can be issued on the basis of caste certificate issued by the State to which a person belongs and in this context the Deputy Commissioner Ranchi was directed to submit a report on the correct state of affairs as is apparent from proceeding dated 06.11.13. This was so, because of the reason that, in the office of District Welfare Officer, Ranchi, there was no document, on the basis of which the caste certificate was issued to the petitioner. He submits that pursuant to proceeding dated 06.11.13, as letter dated 16.12.13 was issued by the Deputy Commissioner, Ranchi requesting the Principal Secretary, Personnel, Administrative Reforms and Rajbhasa 9 Department, to find out from the place of origin of the petitioner about issuance of any caste certificate to the petitioner. Accordingly this matter was taken up by the Principal Secretary with the State of Punjab. Vide letter dated 31.03.14 issued by authority from state of Punjab to the Principal Secretary of the State of Jharkhand a report was forwarded indicating that a schedule caste certificate was issued to the father of the petitioner by State of Punjab on 4.12.1992 which in turn was forwarded to the Deputy Commissioner, Ranchi vide letter dated 23.05.14. This was then forwarded by the Deputy Commissioner, Ranchi to the Welfare Department vide letter no. 138 (1) dated 30.05.14. He submits that accordingly pursuant to aforesaid order dated 06.11.2013, the only communication which was submitted before the Caste Scrutiny Committee was letter No. 138 (1) dated 30.05.2014 containing the letter dated 31.03.2014 wherein the only thing which was mentioned was that the father of the petitioner was issued caste certificate No. 2083 dated 04.12.1992. He further submits that so far as other material in connection with various report and enquiry made by the authorities of the State of Punjab are concerned, the same were neither done pursuant to the direction issued by the Caste Scrutiny Committee nor the same was contemplated by the Caste Scrutiny Committee in its order dated 06.11.2013. He submits that the Caste Scrutiny Committee was required to examine as to whether the petitioner was entitled to caste certificate which was issued to the petitioner from the State of Jharkhand and other related issues. He submits that once the said report was submitted before the Caste Scrutiny 31 Committee, Caste Scrutiny Committee answered all the issues and clearly held that the petitioner is permanent resident of the State of Punjab and she was not entitled to receive caste certificate from the State of Jharkhand.

He submit that this was so because of the reason that the caste certificate which was issued to the father of the petitioner on 04.12.1992 was not only subsequent to 1989, i.e. subsequent to the date on which the petitioner was issued caste certificate, but the same was itself under cloud. He submits that in view of the said circumstance, the Caste Scrutiny Committee of the State of Jharkhand does not have jurisdiction to examine the entitlement of the petitioner to receive the caste certificate in view of 10 the circular issued by the Central Government that the caste certificate to an applicant who has migrated to another State can be issued on the basis of the caste certificate issued to her parents from the appropriate State. He submits that as the caste certificate of the father of the petitioner is in cloud, therefore the petitioner can certainly approach the State of Punjab for the purpose of issuance of caste certificate. So far as State of Jharkhand and the authorities of the State of Jharkhand are concerned, they cannot issue caste certificate to the petitioner. He submits that the caste certificate which has been issued to the petitioner is itself in total disregards of the circular issued by the Union of India in this regard."

13. He further submitted that the petitioner has challenged the recommendation dated 26.04.2018 which is referred in the order of the Caste Scrutiny Committee. He further submitted that the petitioner was having the possession of that recommendation. On 06.11.2018 the petitioner appeared before the Caste Scrutiny Committee and failed to file any reply or produce any document to show that his State of origin is Jharkhand. He further submitted that in such documents, like Service Book, Sale deed No.4224 dated 17.10.2018 shown as resident of Village-

Manhar, District-Vaishali, State of Bihar was also not controverted by the petitioner. He submitted that the Caste Scrutiny Committee had issued notice of hearing fixing 28.09.2018 to the petitioner and the proceeding was conducted in presence of the petitioner, on 32 06.11.2018, he submitted that the petitioner was in possession of all the documents, however, the petitioner, inspite of notice, did not file any reply to the notice. To controvert the fact, he submitted that the argument of the principles of natural justice in view of this, is not available to the petitioner. He further submitted that all the documents the petitioner was requiring has not been disclosed. He submitted that the effect of bifurcation of State of Bihar in the two successor States have been recently considered by the Full Bench of this Court in the case of "Ranjit Kumar v. State of Jharkhand and Others" & Analogous cases [supra]. The petitioner belongs to an area forming part of the present State of Bihar. He submitted that by virtue of Section 54 of the People's Representative Act, 1952, a person who is a member of scheduled caste in any State can contest for the membership for the House of People from the seat reserved for scheduled caste. Section 5 of the said Act says, that a member of scheduled caste/scheduled tribe can contest from any seat reserved for the scheduled caste/scheduled tribe of that State.

By way of referring these sections, he submitted that there is difference between election of the House of People and the Legislative Assembly of the State. He further submits that Section 18(1)(b) and 26(2) (1) of the Jharkhand Municipality Act, 2011 was considered in the judgment by the Full Bench in its paragraph no.6.

He submitted that the petitioner is not a member of scheduled caste in the State of Jharkhand as such he is disqualified to be the Member of the Legislative Assembly and also disqualified for being Member from any reserved seat in the State of Jharkhand. He further submitted that the retrospectivity of Municipality Elected Representative (Discipline and Appeal) Rules, 2020 as argued by the petitioner is misplaced. He further submitted that by virtue of 33 provision of Section 18(1)(b) of Municipality Act, 2011 the power is there to declare disqualified the elected Member in view of order of Hon'ble Full Bench. Rule 3.16 further clarifies which has been considered at paragraph no.21 of the Full Bench judgment. He submitted that by Notification dated 21.09.2020, the two-Member Enquiry Committee was constituted. The Enquiry Committee found the allegation against the petitioner and submitted the report on 21.10.2020 and thereafter the final order dated 14.08.2020 was passed disqualifying the petitioner from the post of Mayor. He submitted that the petitioner was issued notice dated 14.10.2020 against the report of the Municipal Commissioner on the charges framed by the enquiry committee which are on record by way of Annexure-2/A. He submitted that all the proceedings took place after the coming into force the Rules, 2020 for which the power is also vested under the substantial provision of the Act of 2011 and thereafter the order of disqualifying has been passed. He submitted that the petitioner has not challenged the notice and the enquiry report issued after the Rules, 2020 came into force nor the order of original and the appellate authority has been challenged.

He further submitted that this disqualification relates back to the period prior to the election of the Mayor and as such there is no need to challenge election. To buttress his argument, the learned counsel relied in the case of Hon'ble Full Bench of Patna High Court in the case of "Rajani Kumari v. State Election Commiss., through its Secretary" reported in (2019) SCC Online (Pat.)1715 =2019 (1) PLJR 873. He has challenged the letter dated 28.08.2020 and also filed the appeal against the order disqualifying him to hold the post of Mayor and the same has not been challenged in this writ petition and he has submitted that two parallel proceedings the petitioner 34 has invoked and on that ground the petition is fit to be dismissed.

He further submitted that the issue of caste certificate, benefit of reservation on the one hand and the disqualification are two different and distinct issue, for which the petitioner was required to challenge in separate proceeding.

14. In the light of the above facts and the submissions of the learned counsels appearing on behalf of the parties, the Court finds as follows:

15. Ministry of Home Affairs, Government of India issued directions from time to time how SC/ST persons migrated from the State of his/her origin to another State will be considered. The letter dated 06.08.1984 speaks as under:

"No. BC-16014/1/82-SC & ECD-

Goverment of India Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya New Delhi, the 6th August, 1984.

To The Chief Secretaries of All State Goverments and U.T. Administrations.

Subject: Verification of claim of candidates belonging to Scheduled Castes and Scheduled Tribes and migrants from other states/Union Territories Form of certificate- Amendment to. Sir, I am directed to refer to this Ministry's letter of even number dated the 18.11.1982 and the Department of Personnel and Administrative Reforms letter No 36012/6/76/Est. (SCT), dated the 29/10/1977 on the above subject and to say that the form of Scheduled Caste/Scheduled Tribe certificate enclosed with the aforesaid letters has been further revised consequent upon coming into force of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and keeping in view the difficulty being experienced by the persons belonging to the Scheduled Castes and Scheduled Tribes in obtaining community certificates on migration from their States of origin to another for the purpose of employment, education etc. The revised caste/tribe form of certificate is enclosed herewith. It is requested that a copy of the revised form of certificate may please be brought to the notice of all the competent authorities who have been empowered to issue such certificates. The list of competent authorities who have been empowered to issue the Scheduled Caste/Scheduled Tribe certificates circulated by the Department of Personnel and Administrative Reforms in their letter No. 13/2/74-Est. (SCT), dated, the 05/08/1975 has also been incorporated in the enclosed revised form.

2. The instructions issued in this Ministry's letter of even number dated the 18.11.1982 will continue. It is, however, clarified that the Scheduled Caste/Scheduled Tribe person on migration from the State of his origin to another State will not 35 lose his status as Scheduled Caste/Scheduled Tribes but he will be entitled to the concessions/benefits admissible to the Scheduled Castes Scheduled Tribes from the State of his origin and not from the State where he has migrated. All competent authorities may be advised under intimation to this Ministry to issue the Scheduled Caste/Scheduled Tribe certificates on the revised form of henceforth after satisfying themselves of correctness of the certificate after proper verification based on the revenue records through reliable enquiries. The list of the competent authorities empowered and incorporated in the form may please be followed strictly. No other authority may be authorized to issue the Scheduled Caste/ Schedules Tribe certificates.

Yours faithfully.

Sd/-

BK Sarkar Joint Secretary to Govt. of India Dated, the 6th August, 1984 No. BC-16014/1/82-SC & BCD-I,

1.Secretary, Union Public Service Commission, Dholpur House, New Delhi (with 15 S/cs).

2.Secretary, Staff Selection Commission, CGO Complex, Block No.12, Lodi Road, New (with 15 S/cs.

3.All the Ministries/Departments, Government of India.

4. Secretary, Commission for Scheduled Castes/Scheduled Tribes, Lok Nayak Bhawan,New Delhi

5. Commissioner for Scheduled Castes & Scheduled Tribes, R.K. Puram, New Delhi.

6. All Directors/Deputy Directors for Scheduled Castes and Scheduled Tribes.

7.Comptroller and Auditor General of India.

8.Election Commission of India.

9. Lok Sabha Secretariat (SC/ST Branch) with spare copies).

10. Lok Sabha Secretariat (Administration Branch). II. Ministry of Defence (D-FS)

12. Bureau of Public Enterprises (Management Division).

13. Ministry of Home Affairs (Planning Cell) for taking necessary action so far as Union Territories are concerned

14. Department of Personnel and Administrative Reforms. Estt. SCT, Administration L, II AIS(I). (III), (IV), CS(I). (II). (III), Est(B), (C. (D), IFS, ISS, AVD(II), CD(IV), EO(MM), and Welfare Sections.

15. All attached and subordinate offices of the Department of personnel and Administrative Reforms.

16. All Sections in SC&BCD Division/T.D. Division, Administration)(A)(I), (D)(II) Sections in the Ministry of Home Affairs.

17. One copy to be retained in F.No.BC-120202/76-SCT.I Sd/-

(B.K. Sarkar) Joint Secretary to the Govt.of India"

16. The further Notification dated 22.02.1985 in paragraph no.2 states as under:

"2. It is also clarified that a Scheduled Caste/tribe persons who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled 36 Caste/tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated"

17. The letter dated 22.02.2018 is as under:

"No. 12017/2018 -SCD (R.L.Cell) Government of India Ministry of Social Justice and Empowerment Department of Social Justice and Empowerment (Scheduled Castes Development Division-Revision of Lists Cell) Shastri Bhawan, New Delhi, dated the 22nd February, 2018 To The Chief Secretaries to all State Governments/Union Territory Administrations.

Subject:--Reiteration of the instruction on issue of Scheduled Caste Certificate to migrants from other States/Union Territories. Sir/Madam, I am directed to refer to Ministry of Home Affairs (MHA) letters No. BC-16014/1/82-SC & BCD-I dated 06.08.1984 & 22.02.1985 (copies enclosed) in which Chief Secretaries of all State Governments/Union Territory Administrations were requested that the prescribed authority of a State Government/Union Territory Administration may issue the Scheduled Caste/Tribe certiſicate to a person who was migrated from another State on production of the Genuine Certificate issued to his/her father by the prescribed authority of the State of the father's origin except where the prescribed authority feels that detailed enquiry is necessary through the State of origin before issue of the certificate. The certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which person has migrated. The revised form of Caste Certificate for the purpose was circulated. It was clarified that the Scheduled Caste/ Scheduled Tribe person on migration from the State of his/her origin to another State not lose his/her status as Scheduled Caste/Scheduled Tribes but he/she will be entitle to the concessions/benefits admissible to the Scheduled Castes/Scheduled Tribes from the State of his/her origin and not from the State where he/she has migrated.

2. Instances have been brought to the notice of this Ministry that despite the aforesaid instructions, the persons belonging to Scheduled Castes who have migrated from one State/ Union territory (UT) to another for the purpose of employment, education etc. experience great difficulty in obtaining caste certificate or they are denied Scheduled Caste certificate in the migrated State/UT.

3. It is, therefore, reiterated that the competent authorities who have been empowered to issue social status certificate in a State Government/UT Administration may issue the Scheduled Caste certificate to a person who has migrated from another State/UT, on the production of the genuine certificate issued to his/her father by the prescribed authority of the State/UT of the father's origin except where the prescribed authority feels that detailed through the State/UT of origin before issue of the certificate. The certificate will be issued enquiry is necessary irrespective of whether the Caste in question is scheduled or not in relation to the State/UT to which the person has migrated. It is also clarified that inter-State/UT Scheduled Caste migrant will be deemed to be a Scheduled Caste of the State/UT of his/her origin and will be entitled to derive benefits from the State/UT of origin and not from the State UT to which he/she has migrated.

However, a member of a Scheduled Casie would be entitled for all benefits/concessions of Central Government irrespective of his/her State/UT of origin.

4. All the State Government/UT Administrations are requested to bring the contents of this letter to the notice of all the authorities empowered to issue social status certificate in the State/Union Territory.

Yours faithfully (Aindri Anurag) Joint Secretary to the Govt. of India Tel: 2338353 No. 12017/1/2018 SCD (R.L.Cell) Dated the 22nd February, 2018 Copy forwarded for information and necessary action to:

1. Department of Personnel & Training, Estt.(R&S) with the request that necessary amendment to the brochure of the reservation in services for Scheduled Castes and Scheduled Tribes, by incorporating where necessary, the position stated in the foregoing paragraphs may please be made.

2. The Secretary, Union Public Service Commission, Dholpur House, New Delhi-110069 Staff Selection Commission, Block No.12, CGO Complex, Lodhi Road,

3.The Chairperson, Staff Selection Commission, Block No.12, CGO Complex, Lodhi Road, New Delhi

4. The Comptroller & Auditor General of India, Pocket-9, Deen Dayal Upadhyay Marg, New Delhi-110124.

5. Election Commission of India, Nirvachun Saden, Ashoka Road, New Dolhi-110001

6.The Joint Secretary, National Commission for Scheduled Castes, Lok Nayak Bhawan, Khan Market, New Delhi - 110003.

7. The Joint Secretary, National Commission for Scheduled Tribes, Lok Nayak Bhawan, Khan Market, New Delhi - 110003,

8. All Bureau Heads/ Divisional Heads/ Desks/ Sections of Ministry of Social Justice and Empowerment (Aindri Anurg) Joint Secretary to the Govt.of India"

18. The letter dated 18.11.1982 speaks of detailed enquiry through the State of origin before the issue of the certificate.

In the light of the above letters, subsequent guidelines have been issued by the Government of India on different times as to how the migrated persons will be treated. While considering the Articles 341 , 342 and 342(a) of the Constitution of India the Full Bench of this Court in "Ranjit Kumar v. State of Jharkhand" at paragraph no.55 of its judgment held as under:

"55. The line of decisions rendered by the Constitution Bench of the Apex Court in the case of Marri Chandra Shekhar Rao; Action Committee on Issue of Caste Certificate to Scheduled Caste and Scheduled Tribes in the State of Maharashtra and Bir Singh consistently lay down that scheduled castes and scheduled tribes 38 specified in relation to a State or a Union Territory do not carry the same status in another State or Union Territory and any expansion or deletion of the list of scheduled castes/scheduled tribes by any authority except Parliament would be against the constitutional mandate under Article 341 and 342 of the Constitution of India. Since power under Article 16(4) is not only capable of being exercised by legislative provision/enactment, but also by an Executive Order issued under Article 166 of the Constitution, any operation of the lists of scheduled castes and schedules tribes by exercise of enabling power vested by Article 16(4) beyond the clases or categories enumerated under the Presidential Order for a particular State/Union Territory would have the obvious effect of circumventing the specific constitutional provisions in Article 341 and 342. If in the opinion of the State, it is necessary to extend the benefit of reservation to a class/category of SC/ST beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its view in the matter prevail with the central authority, so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of scheduled castes/scheduled tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution has been held to be impermissible under the Constitution."

19. In the letter dated 20.02.1985, it has been clarified that the prescribed authority of a State Government/ Union Territory Administration may issue SC/ST Certificate to a person who has migrated from another State of the father's origin except, where the prescribed authority feels, that a detailed enquiry is necessary through the State of origin before issue of the certificate.

It was further clarified that the person who has migrated from the State of origin to other State for the purpose of seeking education, employment etc. will be deemed to be Scheduled Caste/Scheduled Tribe of the State of his origin and will be entitled to derive benefit from the State of origin and not from the State to which he has migrated. For determining the status of a person in such a situation, the Hon'ble Supreme Court has considered in the case of 39 "Sudhar Vithal Kunbhare v. State of Maharashtra and Others", [supra] and "Sau Kusum" arising out of reorganization of the State and these two judgments have been considered by the Hon'ble Full Bench of this Court at paragraph no.15, which is as under:

"15. Learned counsels have also placed reliance upon the decision of the Hon'ble Apex Court in Sau Kusum Vs. State of Maharastra & Ors., reported in (2009) 2 SCC 109, wherein where, the appellant who was belonging to the Vidarbha area, the border area of the States of Madhya Pradesh and Maharastra, claimed to be belonging to the carpenter caste, which was recognized as Other Backward Class in both the States, was denied to the right to contest an election for the Member of Panchayat in the State of Maharastra, on the ground that she was not a resident of Maharashtra prior to 1967 and her family had migrated from the State of Madhya Pradesh to the State of Maharastra. In the said case, it was urged on behalf of the appellant that the principles laid down in Sudhakar Vithal Kumbhare's case should have been applied. In the said case, the Hon'ble Apex Court laid down the law as follows :-

"12. In that view of the matter, if it is a fact that the people belonging to the said caste are recognised as OBC, both in Madhya Pradesh and Maharashtra, being badhai in the former and sutar in the latter and keeping in view of the fact that the Caste Scrutiny Committee has found her to be belonging to the sutar caste, we are of the opinion that the matter requires reconsideration.

13. It may be noticed that the Bombay High Court also in Hitesh Dasiram Murkute v. State of Maharashtra opined:

"(iv) Date too is equally relevant in order to identify the person as belonging to caste included in the Schedule on the date of such inclusion with reference to locality identified in the Schedule.

Therefore, a person claiming benefit would have to show that his ancestors hailed on the date of inclusion of caste in Schedule from a place identified in the Schedule. In other words, the relevant date is not the date of migration but date of inclusion of caste or tribe in the Schedule."

14. There is nothing on record to show as to when she had migrated to the State of Maharashtra. If admittedly she had migrated to the State of Maharashtra before 1967, she would be considered to 40 be a permanent resident of Maharashtra.

*** *** ***

16. It is one thing to say that she, being not a permanent resident of the State, would not be entitled to contest any election. If she is to be conferred the said status, she will be entitled to all the benefits to which members of the said caste are entitled to but would also be entitled to other benefits i.e. not the benefit to contest in the reserved categories of the election of the Panchayat alone but other benefits as well."

20. Hon'ble the Supreme Court in the case of "Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another v. Union of India and Another" reported in (1994) 5 SCC 244 has considered the communication dated 22.03.1977 of the Government of India considering Articles 341 and 342 of the Constitution of India and discussed at paragraph no.8 and 16, as under:

"8. In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had migrated. To remove this difficulty experienced by them the earlier instructions contained in the letter of 22-3-1977, and the subsequent letter of 29-3-1982, were modified, in that, the prescribed authority of a State/Union Territory was permitted to issue the Scheduled Caste/Scheduled Tribe Certificate to a person who had migrated from another State on production of a genuine certificate issued to his father by the prescribed authority of the State of the father's origin except where the prescribed authority considered a detailed enquiry necessary through the State of origin before issue of certificate. It was further stated that the certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which the person has migrated. Of course, this facility did not alter the Scheduled Caste/Tribe status of the person in relation to the one or the other State. The revised form of the certificate was circulated. Further, it was clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of education, employment, etc., will be deemed to be Scheduled Caste/Tribe of the State of his origin only and will be entitled to derive benefits 41 from that State and not from the State to which he had migrated. By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. Therefore, the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate. This was reiterated in a subsequent letter dated 15-10-1987 addressed to Smt Shashi Misra, Secretary, Social Welfare, etc., in the State of Maharashtra. In paragraph 4 of that letter it was specifically stated:

"Further, a Scheduled Caste person, who has migrated from the State of his origin, which is considered to be his ordinary place of residence after the issue of the first Presidential Order, 1950, can get benefit from the State of his origin and not from the State to which he has migrated."

So stating the proposal regarding reduction in the period of cut-off point of 1950 for migration was spurned. It was stated that the proposal could have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on all-India basis which, it was said, was not feasible in view of the provisions of Articles 341 and 342 of the Constitution. It will thus, be seen that so far as the Government of India is concerned, since the date of issuance of the communication dated 22-3-1977, it has firmly held the view that a Scheduled Caste/Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he cannot claim benefit as such in the latter State.

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 42 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. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under:

"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 this 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...."

Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to 43 a Scheduled Tribe in the State of his origin."

21. Further, in the case of "Sanjeev Kumar and Another v. State of Bihar and Others" reported in (2016) 13 SCC 105, the Hon'ble Supreme Court has held that the person who was originally from the State of U.P was not entitled to the benefit of SC candidate in the State of Bihar. Reference in this regard may be made to paragraph nos.13 to 15 of the said judgment, which are quoted below:

"13. It is true that the initial appointment of the appellants has been found to be legally bad on account of the reasons set out earlier, yet the prolonged litigation on the subject has indeed deprived the appellants of the opportunity to seek employment elsewhere and even to appear in the successive examinations that have been offered by the Public Service Commission to eligible candidates for recruitment in the Bihar State Judicial Service not only in the reserved category but for the general category candidate like the appellants. The appellants appear to have laboured under the impression that since they have already been appointed they would be entitled to defend their appointments and continue in service. That expectation has not come true in the light of the Constitution Bench decisions. Be that as it may, we see no impediment in the appellants being given a last opportunity to appear in the next examination for recruitment of officers in the State Judicial Service to be notified by the Bihar Public Service Commission hereafter in relaxation of the age bar, if any prescribed. We make it clear that the appellants shall appear in the said examination and shall be treated as general category candidates only. In case they qualify and get selected for appointment as fresh candidates, their appointments already made in the year 2006 would continue uninterrupted with all consequential benefits of seniority, etc. In case, however, the appellants fail to qualify for appointment in the next examination, as indicated above, they shall cease to hold the posts currently held by them.

14. On the same analogy, we do not see any reason to deny to Respondents 4 and 5, writ petitioner and intervener, a similar opportunity whose position is no different. They too appear to have neglected the subsequent examinations hoping that the impugned judgment would entitle them to enter the judicial service. Now that we find it too late for the said respondents to be appointed on the basis of 44 examination held in the year 2006, the only option for them too is to try their luck in the next examination along with the appellants in relaxation of the age bar in the general/reserved category for Scheduled Caste candidates as the case may be.

15. In the result, we dismiss this appeal insofar as the impugned judgment declares that the appellants are not entitled to the benefit of reservation. The remainder of the impugned order is however modified to the effect that the appellants herein and Respondents 4 and 5 (original writ petitioner and intervener) shall have an opportunity to appear in the next examination for selection of the Civil Judge, Junior Division (Munsif Magistrates) in the Bihar Judicial Service, to be notified by the Bihar Public Service Commission. We make it clear that this opportunity shall be the last and final opportunity to both sides to appear in the examination and compete for a fresh appointment. In case the appellants fail to qualify for appointment in the open merit category on the basis of their inter se merit with other candidates in that category, their appointments shall stand terminated with effect from the date the Public Service Commission declares the final result of the examination. In case however they qualify their appointment made in the year 2006 shall continue with all consequential benefits. The appellants shall not however be entitled to any benefit of reservation at any stage of their service in future. We further make it clear that this order has been passed in the peculiar facts and circumstances of the case and is limited to the appellants and Respondents 4 and 5 alone. No other candidate placed anywhere in the merit list of 2006 shall be entitled to claim any such benefit either from this Court or from the Public Service Commission or by the State of Bihar for that matter."

22. For requirement of caste certificate the original documents or the caste certificate of the father of the petitioner was required which has not been done in the case of the petitioner.

23. In letter dated 02.05.1975, the cases of migration has been dealt as under:

"2. Cases of migration:

(i) Where a person migrates from the portion of the State in respect of which his community is scheduled to another part of the same State in respect of which his community is not scheduled, he will continue to be 45 deemed to be a member of the Scheduled Caste or the Scheduled Tribe, as the case may be, in relatin to that State."

(ii) Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or a Scheduled Tribe only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated."

24. On plain reading of this, it is also clear that the person migrates from one State to another is entitled for such reservation to the State to which he is originally belongs to and not in respect to which he has migrated. This aspect of the matter has been considered by the Hon'ble Supreme Court in the case of "Marri Chandra v. Dean, SGS Medical College" (1990) 3 SCC 130. In paragraph no.6 of the said judgment the point was formulated which is as under:

"6. The question, therefore that arises in this case, is whether the petitioner can claim the benefit of being a Scheduled Tribe in the State of Maharashtra though he had, as he states, a Scheduled Tribe certificate in the State of Andhra Pradesh? Inasmuch as we are not concerned in this application with the controversy as to whether the petitioner correctly or appropriately belongs to the Gouda community or not, or whether the petitioner had a proper certificate, it is desirable to confine the controversy to the basis question, namely, whether one who is recognised as a Scheduled Tribe in the State of his origin and birth continues to have the benefits or privileges or rights in the state of migration or where he later goes."

25. In paragraph nos. 20, 21 and 22, the Hon'ble Supreme Court in the case of "Marri Chandra v. Dean, SGS Medical College" reported in (1990) 3 SCC 130 (supra) answered the same and held that the petitioner of that case was not entitled to be admitted to the medical college on the basis of scheduled caste certificate in Maharashtra. The judgments relied by the learned counsel for the respondent State are on the same line and the Full Bench of this Court has also answered this aspect of the matter in 46 the case of "Ranjit Kumar v. State of Jharkhand and Others" & Analogous cases, [supra]. The petitioner was required to produce the document of his father as admittedly the father of the petitioner was of the origin of Manhar Village in the District of Vaishali (Bihar) and in the light of this decision, on migration, the petitioner is not entitled for the benefit in the State of Jharkhand. The petitioner has challenged the letter dated 28.08.2020 and has also filed the appeal against the order of disqualification to hold the post of Mayor before the appellate authority which is dismissed and the same is not under challenge in this writ petition, the petitioner is invoking two parallel proceedings for disqualification and in the light of the above discussion and the judgments, no relief can be extended to the petitioner and, accordingly, the writ petition [W.P.(C) No.3734 of 2019] is, hereby, dismissed.

26. I.As, if any, also stand disposed of.

(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi Dated 08/04/2021 NAFR/SI,,

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