Madras High Court
Dr.R.Venu vs The State Level Scrutiny Committee on 14 November, 2008
Bench: Elipe Dharma Rao, S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14-11-2008 Coram THE HON'BLE Mr.JUSTICE ELIPE DHARMA RAO AND THE HON'BLE Mr.JUSTICE S.TAMILVANAN Writ Petition No. 37260 of 2005 .... Dr.R.Venu ..Petitioner Vs. The State Level Scrutiny Committee and Secretary to Government, Adi Dravidar and Tribal Welfare Department, Fort St.George, Chennai-9 ..Respondent For Petitioner :: Mr.K.S.Kumar For respondents :: Mr.P.Subramanian, Addl.Government Pleader. Writ Petition filed under Art.226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the respondent in proceedings No.30417/ADW II/2004, dated 10.8.2005, quash the same and consequently direct the respondent to issue community certificate to the petitioner's son V.V.Sujith as belonging to Scheduled Tribe Hindu Kaniyan Community and pass such other orders. ORDER
(Order of the Court was made by ELIPE DHARMA RAO,J.,) The petitioner Dr.R.Venu of Ottayalvilai village of Agastheeswaram Taluk, Kanniyakumari District, has applied for the Scheduled Tribes Community Certificate to his son V.V.Sujith before the District Vigilance Committe, as his son belongs to Kaniyan Tribe which is included in the Scheduled Tribe List in the State of Tamil Nadu. It is stated that the petitioner's native place is Chapad Village, Karthikai Palli Taluk, Alapuzha District, Kerala State. He married one G.S.Valsala of Parakkai Village in Kanniakumari District and out of the wedlock, their son V.V.Sujith was born and his birth has also been registered before the Registrar of Births, Kottaram and thereby his son is an ordinary resident of Ottayalvilai, Kanniyakumari District as he had shifted his residence permanently to the said place. His name finds a place in the Voters' list and family card has also been issued to him evidencing the permanent residence at Ottayalvilai. According to the petitioner, he is belonging to Hindu "Ganaka" community as evident from the community certificate issued by the Tahsildar of Karthikaipali, Kerala State. According to the Gazette issued by the Kerala Government, the Hindu "Ganaka" community is classified under the Other Backward Class community.
2. On his application, the District Vigilance Committee, Kanniyakumari District has verified the genuineness of the social status of the petitioner in detail and the petitioner has not produced any documentary evidences to prove that the community Ganaka in Kerala State is the same as the community of Kaniyan which is classified as Scheduled Tribes in the State of Tamil Nadu.
3. The District Vigilance Committee had considered that the community Kaniyan is otherwise known as Kani, Kanisan, Kanisu meaning an Astrologer, whereas the community Ganaka, known as Kani or Kaniyan is notified as Other Backward Classes in the State of Kerala and the same community is notified in the list of Backward Class in the State of Tamil Nadu in Sl.No.48. Therefore, the District Vigilance Committee has considered that the Ganaka Community, otherwise known as Kani, Kaniyan which is classified as backward Classes in the State of Tamil Nadu and Kerala cannot be considered as Kaniyan, Scheduled Tribes community which is notified in Sl.No.8 in the list of Scheduled Tribes in the State of Tamil Nadu. Thus, the District Vigilance Committee, by its proceedings dated 11.10.2000 rejected the application of the petitioner. Aggrieved of the same, the petitioner preferred W.P.No:1527 of 2003, and this Court disposed of the said Writ Petition with a direction to the petitioner to prefer an appeal to the State Level Scrutiny Committee and further directed the said Committee to consider and dispose of the Appeal within a period of 8 weeks from the date of receipt of a copy of the said order in accordance with law.
4. Based on the above said direction of the High Court, the petitioner filed an Appeal before the State Level Scrutiny Committee, which directed the petitioner to appear before it for deposition and during the course of the enquriy the petitioner also submitted some additional documents. The State Level Scrutiny Committee after examining the documentary evidence and the deposition given by the petitioner and also considering the opinion given by the Anthropologist (Member of the Committee) and the decision of the Supreme Court came to the conclusion that there is no ground to consider the Appeal and by its proceedings dated 18.11.2003, rejected the Appeal confirming the decision of the District Vigilance Committee. Once again, aggrieved of the same, the petitioner approached this Court by filing W.P.No:7104 of 2004 and this Court by order dated 29.10.2004 remitted the matter with a direction to the State Level Scrutiny Committee to consider and dispose of the Appeal without merely guided by the Kerala List of OBC, but to find out the truth on the basis of the materials produced by the petitioner as to whether he falls under Serial No.48 of the Backward Classes List or under Serial No.8 of Scheduled Tribes List. This Court also gave further direction that due regard shall be given to certificates issued in favour of one A.Bindu and another B.Sureshkumar and an opportunity of hearing shall be given to the petitioner to prove the same as well as whether they are related to him.
5. On remittal, the State Level Scrutiny Committee requested the District Collector, Kanniyakumari District to verify the genuineness of the social status of Tmt.Bindhu and her husband Thiru B.Sureshkumar. Accordingly, enquiries were made by the Collector, Kanniyakumari District through the RDO, Nagercoil on the above aspects and after recording their statements sent a report to the effect that there is no blood relationship between the families of Dr.R.Venu and that of Thiru B.Sureshkumar and Tmt.Bindhu and therefore the petitioner and the alleged relatives belong to different families of different communities. The State Level Scrutiny Committee based on the above said report and relying on the Clarification issued by the Government of India vide Minisry of Tribal Affairs Letter, dated 4.3.2005, by the impugned proceedings dated 10.8.2005, once again negatived the claim of the petitioner. Against which, the present writ petition has been preferred.
6. Learned counsel for the writ petitioner contended that Hindu Ganaka community which is also known as Kaniyan has been classified as an OBC in the State of Kerala and notified in Serial No.29 of its Gazette Publication, whereas the very same caste Kaniyan has been classified as Schedule Tribe in the Gazette published by the State of Tamil Nadu, which is listed in S.No.8. It is also submitted that the relationship between himself and Mr.Bhaskaran (father of B.Sureshkumar) has been totally misunderstood by the respondent and actually the mother of the said Bhaskaran and the petitioner's mother are own sisters. The learned counsel also submitted that the letter dated 4.5.2003 issued by the Government of India, vide Ministry of Tribal Affairs has no relevancy in the case of the petitioner since he comes under the category of Ordinary Resident of Kanniyakumari District in Tamil Nadu and as per Sl.No.8 of the Schedule Tribe List, Hindu Kaniyan has been classified as Scheduled Tribe in Tamil Nadu State and as such the petitioner is entitled to the claim.
7. In support of his contention, learned counsel for the petitioner relied on the judgement of the Apex Court in Union of India and others Vs. Dudh Nath Prasad, reported in 2000(I) CTC 418 (SC) and contended that place of birth is not material for the purpose of determination of the caste and the criteria is the place where the parents of the claimant or the individual ordinarily reside.
8. The facts of the case in the decision cited above are that the the respondent, Dudh Nath Prasad, is a member of the Indian Administrative and Allied Services*. He was appointed in 1968 against a reserved vacancy as he was treated to belong to the Nuniya community which was declared to be a Scheduled Caste community in the State of West Bengal and not in the State of Bihar where the respondent was born and had his schooling throughout, even up to graduate level. It was for this reason that the Comptroller and Auditor General wrote to the respondent that he cannot be treated as a member of the Scheduled Caste community. This letter was received by the respondent while he was working as Deputy Accountant General and had been selected for postgraduate diploma course in Financial Studies in the United Kingdom under Colombo Plan. While he had made all preparations and even purchased the air ticket to proceed to the United Kingdom, he received the above letter which scuttled his programme. The respondent, at that stage, approached the Central Administrative Tribunal where he contended that he belonged to the Nuniya caste and the caste certificate produced by him at the time of his examination, which was duly checked and verified by the Union Public Service Commission (UPSC for short), had been properly issued by the Sub-Divisional Officer, Howrah, as his parents had been residing in that State for over 30 years prior to the date on which the examination was held by the Union Public Service Commission. His contention was accepted by the Judicial Member of the Tribunal, but the Administrative Member did not agree and gave a dissenting judgment. Consequently, the matter was referred to the Chairman who, by his judgment and order dated 15-12-1987, which is impugned in this appeal, agreed with the Judicial Member and found that the respondent did belong to the Nuniya caste, which was duly notified as a Scheduled Caste in the State of West Bengal. It was further found that the ordinary place of residence of the parents of the respondent was Howrah from where the caste certificate was produced by the respondent, which was a proper and valid certificate. The claim petition was allowed with these findings and it is against this judgment that the Union of India has come in appeal before the Supreme Court. On the basis of the above facts, the Supreme Court considered the contention of the Union of India that since the parents of the respondent originally belonged to the State of Bihar where they also possessed property and where the respondent was born and brought up and also educated, he could not be treated to be a resident of West Bengal nor could his parents be treated to be ordinarily residing in West Bengal and, therefore, the benefit of reservation in favour of the Nuniya community, which was a Scheduled Caste community in the State of West Bengal alone, would not be available to the respondent.
9. While deciding the case, the Hon'ble Supreme Court referred to the "Instructions to Candidates" contained in the pamphlet issued for the Indian Administrative Service etc., Examination, 1966, published under the authority of the Government of India, which recites as under:-
5. A candidate who claims to belong to one of the Scheduled Castes or Scheduled Tribes should submit in support of his claim a certificate, in original, in the form given below from the DISTRICT OFFICER OR THE SUB-DIVISIONAL OFFICER OR ANY OTHER OFFICER OF THE DISTRICT IN WHICH HIS PARENTS (OR SURVIVING PARENT) ORDINARILY RESIDE, who has been designated by the State Government concerned as competent to issue such certificate, if both his parents are dead, OF THE DISTRICT IN WHICH HE HIMSELF ORDINARILY RESIDES OTHERWISE THAN FOR THE PURPOSE OF HIS OWN EDUCATION.
A candidate from Delhi State may submit such a certificate also from the Additional District Magistrate or the First Class Stipendiary Magistrate or the Revenue Assistant.
10. Thereafter, the Apex Court came to the conclusion that for all intents and purposes it could be termed that the respondent and his parents are "ordinarily residing" at Howrah on the following reasoning:
"9. According to para 5 of the Instructions, the Scheduled Caste certificate has to be issued by the District Officer or the Sub-Divisional Officer etc. of the district in which the parents of the candidate ordinarily reside. If the candidate himself is residing, for the purpose of his education, elsewhere, he is still required to produce the certificate of the District Officer etc. of the district in which his parents were ordinarily residing. If, however, both the parents were dead, the candidate could submit the certificate of the District Officer etc. of the district in which the candidate himself was ordinarily residing otherwise than for the purpose of education.
10. Applying the requirements set out in para 5 of the Instructions to the facts of this case, it will be found that since the parents of the respondent were, admittedly, living in District Howrah for more than 30 years before the examination in question was held, the District Officer or, for that matter, the Sub-Divisional Officer in the instant case, could legally issue the caste certificate and also certify that his parents were ordinarily residing in District Howrah. The mere fact that the respondent, for purposes of education, stayed in the State of Bihar and graduated from a college in that State, would not affect the status of his parents who were already living in District Howrah for more than 30 years and consequently could be treated as ordinarily residing in District Howrah. Their status would not be affected by the temporary residence of the respondent, for the purpose of his education, in the State of Bihar. In such a situation, the respondent had no option but to obtain the certificate from the Sub-Divisional Officer, Howrah, as he could not have deviated from the Instructions already issued by UPSC.
11. The Tribunal has found it as a fact that the parents of the respondent had settled down in District Howrah and were living there for about 30 years. They were, therefore, for all intents and purposes, ordinarily residing at Howrah. The examination in which the respondent had appeared was the 1966 examination for recruitment to the Indian Administrative and Allied Services which was held 30 years after the parents of the respondent had settled down in Howrah District."
11. To arrive at the conclusion, the Hon'ble Supreme Court also considered the scope of Section 20 of the Representation of People Act, 1950, for the purpose of meaning for "Ordinarily reside" and observed:, 20. Meaning of ordinarily resident.(1) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein.
(1-A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
(1-B) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member.
12. Apart from the above, the Hon'ble Supreme Court also analysed the literal meaning of the word "reside" as defined in the Oxford Dictionary, Black's Law Dictionary (5th Edition) and also the decision in Jagir Karu & Anr.Vs. Jaswanth Singh (1964 (2) SCR 73) wherein the same has been considered, and Section 20 of the Representation of People Act, 1950 and also the "Instructions", and ultimately the Supreme Court held as follows:-
"Considering the facts of this case in the light of the statutory provisions contained in Section 20 of the Representation of the People Act, 1950 as also the provisions contained in para 5 of the Instructions, since the parents of the respondent were, admittedly, residing in District Howrah for more than 30 years, they would be treated to be ordinarily residing in that district and the mere fact that they held some property in a village in District Siwan in the State of Bihar would not affect their status.
13. Then, the Apex Court proceeded to examine the words "residence" and "domicile" and observed as follows:-
"26. Etymologically, residence and domicile carry the same meaning, inasmuch as both refer to the permanent home, but under private international law, domicile carries a little different sense and exhibits many facets. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. Domicile may also take many colours; it may be the domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. In private international law, domicile jurisprudentially has a different concept altogether. It plays an important role in the conflict of laws. The subject has been elaborately considered by Dicey in his book Conflict of Laws (6th Edn.) as also in another book by Phillimore on domicil. An equally valuable discussion is to be found in Private International Jurisprudence by Foote and by Westlake on private international law.
27. xx xx xx xx
28. In view of the above, the concept of domicile as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, domicile and residence are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used. We are principally concerned with the expression ordinarily reside as used in the Note to para 5 of the Instructions and the expression ordinarily resident used in Section 20 of the Representation of the People Act, 1950. This Act and the Representation of the People Act, 1951, both deal with the election matters including delimitation of constituencies, right to contest the election as also right to vote in a constituency."
14. After the aforesaid lengthy analysation on the question of fact as well as law, the Apex Court ultimately concluded thus:-
"29. We have already explained the meanings of the words ordinarily resident and have found that notwithstanding that the parents of the respondent lived at one time in a village in District Siwan in the State of Bihar and that they owned some property there also, they had shifted to the State of West Bengal long ago and had been living there since then. For all intents and purposes, therefore, they shall be treated to be ordinarily residing in the State of West Bengal. For the State of West Bengal, the President, in exercise of his powers under Article 341(1) read with Article 366(24) had already declared the Nuniya caste as a Scheduled Caste and, therefore, the respondent was rightly treated to be a Scheduled Caste candidate and was rightly appointed against a reserved vacancy, after being declared successful at the examination held by UPSC for the Indian Administrative and Allied Services* in 1966".
15. In response to the reliance placed on the above decision by the petitioner's counsel, the learned Additional Government Pleader relied on the later decision of the Supreme Court in U.P.Public Service Commission, Allahabad Vs. Sanjay Kumar Singh, reported in (2003) 7 SCC 657, wherein it was held that a person certified as SC/ST in relation to one State, if migrates to another State, he would not be entitled to the benefits available to SCs/STs in the State in which he migrated, unless he belongs to SC/ST in that State also.
16. In the above said decision the Hon'ble Supreme Court followed two earlier Constitution Bench decisions rendered in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra Vs. Union of India (1994) 5 SCC 244, and Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College (1990) 3 SCC 130. In that context, the Supreme Court discussed thus:
"8. The question arising in this case is no longer res integra. Almost the same question was considered in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India. The following question arose for consideration: (SCC p.246, para 1) Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Scheduled Tribes in State B?
9. The Constitution Bench answered that question in the negative. Interpreting Articles 341 and 342, the Court observed: (SCC p.247, para 3) What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified".
10. After referring to another decision of the Constitution Bench in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College Ahmadi, J. speaking for the Court observed thus: (SCC p.259, para 16) 16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they 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."
11. The ruling in the above case applies with greater force to the present case for the reason that it is not the case of the writ petitioner that there is any caste or tribe bearing the same nomenclature of Naga in U.P. State. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College it was pointed out (SCC p. 139, para 10) that the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas.
12. The same view was taken in a recent decision in M.C.D. v. Veena though it was a case of OBCs. Suffice it to quote the following passage occurring in that judgment: (SCC p.574, para 6) The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. (per Rajendra Babu, J.)
17. Thereafter, considering the Government of India, Home Ministry's Circular dated 25.11.1982, which enables the authorities concerned of the State to which the Scheduled Tribes migrated, to issue the SC and ST certificates, the Supreme Court once again referred to the Action Committee Case, cited supra and observed thus:-
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 fathers 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. 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.
18. Ultimately, following the dicta laid down in the two Constitutional Bench decisions, the Apex Court concluded thus:-
"14. The contention of the appellants should therefore be accepted and the respondent cannot be treated as a Scheduled Tribe candidate so as to qualify himself to claim reservation against the vacancy reserved for Scheduled Tribes in public services in the State of U.P. The view of the High Court cannot be sustained as it goes counter to the pronouncements of this Court. Hence it is set aside and the appeals are allowed without cost. However, in the peculiar circumstances of the case, the ends of justice would be met if the appellants are directed to consider the case of the respondent in the general category and if in comparison with the general category candidates selected, the respondent had secured higher marks/grading, he should be offered appointment to an appropriate post against one of the existing vacancies".
19. Applying the same dictum as laid down in the ruling of the Hon'ble Supreme Court in the case of U.P.Public Service Commission, cited supra, to the facts of the present case, the contention of the learned counsel for the petitioner that though the writ petitioner belongs to Hindu Ganaka community which is also known as Kani or Kaniyan which has been classified as Other Backward Class in the State of Kerala and included in Sl.No.29 of the Gazette publication, whereas the community "Kaniyan" is classified as a Schedule Tribe and included in Sl.No.8 of the Gazette Publication in the State of Tamil Nadu, and since he is migrated from the State of Kerala to the State of Tamil Nadu and ordinary resident of this State, the petitioner is entitled to claim the status of Scheduled Tribe is not sustainable as it is general knowledge that castes specified as Other Backward Classes might not have undergone the same degree of disadvantages and social hardships as is suffered by the castes specified in Scheduled Castes or Scheduled Tribes in both the States. There is also no dispute that in Tamil Nadu, only Kaniyan and Kanyan have been included in Sl.No.8 of the Scheduled Tribes List, and Kani, Kanisu, Kaniyar and Panikkar have been included in Sl.No.48 of the Backward Classes List. Further, a caste bearing the same nomenclature may exist in two or more States. But the considerations on the basis of which they had been specified either as Scheduled Caste or Scheduled Tribe or Most Backward Community in the respective states 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 a particular State 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.
20. In other words, as held by the Supreme Court in the case of U.P.Public Service Commission, cited supra, even the nomenclature of the caste is one and the same in both the states, only if the caste to which the petitioner belongs in that particular State is declared as SC/ST and the same is declared as SC/ST in the migrated State also, then only a person can claim the status of SC/ST in the migrated State. It is not in dispute that Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with others. Therefore, in the case on hand, the petitioner who migrated from the State of Kerala should also ensure that he shall make way for the disadvantaged and disabled communities of this State, who suffer from disabilities in these part of areas since the considerations on the basis of which they have been specified may be totally different which are based on the degree of disadvantages of various elements of social hardships.
21. The judgement in Dudh Nath Prasad case, relied on by the learned counsel for the petitioner is distinguishable on the facts and circumstances o the present case since the said decision of the Supreme Court was not on the lines, as was decided in the latter case in U.P.Public Service Commission, but it was tested on the basis of the "ordinarily resident" as contemplated in Section 20 of the Representation of People Act read with Paragraph 5 of the Instructions contained in the Indian Administrative Service Examination 1966. In the said case, the Supreme Court had considered the aspect of obtaining the residential certificate as the respondent and his parents were residing for the past 30 years in the District of Howrah, West Bengal State, though the parents of the respondent belonged to State of Bihar and they migrated and settled at West Bengal. Further, Instruction 5 of UPSC also contemplated that to obtain a residential certificate, the applicant (respondent) had to obtain the same from the Sub-Divisional Officer of the District in which he is presently residing. Therefore, considering the facts and circumstances of the said case, the Supreme Court held that mere fact that the respondent was born in Bihar and graduated from college in Bihar would not affect the status of his parents who were already living in Howrah District for more than 30 years and consequently could be treated as "ordinarily residing" in District Howrah and their status would not be affected by the temporary residence of the respondent for the purpose of his education in the State of Bihar and in such a situation, the respondent had no option but to obtain the Certificate from the Sub-Divisional Officer, Howrah, as he could not have deviated from the Instructions already issued by the UPSC. In the light of the above conclusion, the Supreme Court ultimately held that for the State of West Bengal, the President in exercise of his powers under Art.341(1) read with Art.366(24) had already declared "Nuniya" Caste as a Scheduled Caste and, therefore, the respondent was rightly treated to be a Scheduled Caste candidate and was rightly appointed against a reserved vacancy.
22. But, as held by the Hon'ble Supreme Court in the later decision of U.P.Public Service Commission, cited supra, the principle applicable to declaration of the Caste SC/ST, is in relation to the State for which it is specified which depends on the nature and extent of disadvantages and social hardships suffered by that group in that State and not on the ground of having ordinary residence or domicil. Therefore, we hold that the rejection of the claim of the petitioner to issue the Hindu Kaniyan Community Certificate which is included in Sl.No.8 of the Scheduled Tribe List in Tamil Nadu, is perfectly valid in law, as he does not belong to a Schedule Tribe as the said community is not included in the Scheduled Tribe List of Kerala State.
23. In the result, the Writ Petition is dismissed. But in the facts and circumstances of the case there shall be no order as to costs.
gkv Copy to:
The State Level Scrutiny Committee and Secretary to Government, Adi Dravidar and Tribal Welfare Department, Fort St.George, Chennai 9