Chattisgarh High Court
Chandan Manker vs State Of Chhattisgarh And Ors on 5 January, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 23.9.2021
Order delivered on 05.1.2022
WPS No. 1241 of 2012
• Chandan Manker, aged about 28 years, S/o Shri Bal Krishna
Manker, R/o Ekta Nagar, Sector-2, House No.14, Gudiyapara,
Raipur.
---- Petitioner
Versus
1. The State of Chhattisgarh, through Secretary, Tribal Welfare
Department, DKS Bhawan, Raipur (CG)
2. High Level Caste Scrutiny Committee, through its President,
Pt. Deendayal Upadhyay Nagar, Sector-4, Raipur.
3. Secretary, Ministry of Home Department, DKS Bhawan,
Raipur.
---- Respondents
For Petitioner : Mr. Parag Kotecha, Advocate. For Respondents : Mr. Vimlesh Bajpai, Govt. Advocate.
SB: Hon'ble Mr. Justice Parth Prateem Sahu CAV Order
1. This writ petition is filed by petitioner challenging order dated 29.2.2012 by which respondent No.2-High Level Caste Scrutiny Committee cancelled caste certificate issued in favour of petitioner. Earlier also Vigilance Cell conducted inquiry, submitted report dated 3.8.2011 to the effect that since ancestors of petitioner are residents of State of Maharashtra, petitioner is not entitled for benefits of reservation in State of Chhattisgarh.
2. Petitioner has filed this writ petition seeking following reliefs:-
"I.quash / set aside the order dated 29/02/2012 (Annexure P/6) issued by respondent no.2. II. direct the respondent no.2 to issue the verify caste Certificate of the Scheduled Caste to the petitioner.2
III. direct the respondent authority to allow to continue the petitioner on the post of Assistant District Public Prosecutor Officer. IV. The Hon'ble Court may kindly be please to call for the records of the case from the respondents. V. Any other relief, which this Hon'ble Court deems fit and proper under the facts and circumstances of the case and in the interest of justice may be suitable in the fact's of the case, may also be granted."
3. Facts of case, in nutshell, are that father of petitioner migrated from State of Maharashtra to erstwhile State of Madhya Pradesh in the year 1969 (as per case of petitioner), appointed as Daily Wage employee in Mahanadi Reservoir Project Division, Dhamtari and in the year 1972 service of petitioner's father was regularized on post of 'Typist'. Petitioner born on 6.8.1983, his birth was registered with Statistical Department on 3.12.2009, as appearing from Annexure P-3. Petitioner studied upto Class 8 th in Government School at Rudri, District Dhamtari; from Class 9 th to Class 12th in Manonite High School Dhamtari. Petitioner acquired graduate degree from Government College of Science, Raipur (affiliated with Pt. Ravi Shankar Shukla University, Raipur) and LLB degree from Durga College, Raipur (affiliated with Pt. Ravi Shankar Shukla University, Raipur). In the year 2008, the State Government published advertisement inviting applications for appointment on the post of 'Assistant District Public Prosecution Officer'. Vide order dated 3.8.2011 petitioner was appointed as 'Assistant District Public Prosecution Officer'. Prior to issuance of appointment order, vide order dated 17.8.20210 (Annexure P-5) 3 candidates, who submitted application form seeking benefit of their social caste status, were directed to get verified their caste certificate from concerned department. Petitioner submitted relevant documents with respondent No.2 for verification, based on which an inquiry was conducted and after inquiry, respondent No.2 arrived at a conclusion that petitioner is not entitled to benefits of reservation. Report of Vigilance Cell was put to challenge by petitioner by filing writ petition bearing WPS No.7353/2009, which came to be disposed off vide order dated 17.2.2011 (Annexure P-4) with following directions:-
"4.Accordingly, the respondent No.2 is directed to examine the case of the petitioner in the light of the decision of this Court in Dinesh Kumar Bhagoria (supra) and pass an appropriate order, in accordance with law, as early as possible, preferably within a period of six weeks from today."
4. Pursuant to order dated 17.2.2011 (Annexure P-4) passed in WPS No.7353/2009, respondent No.2 conducted fresh inquiry and vide order impugned recorded that ancestors of petitioner are residents of village Kori, Tahsil Samudrapur, District Vardha (Maharashtra), father of petitioner born on 24.6.1945 in village Kori and he obtained social status certificate on 26.6.1968 from the office of Tahsildar, Hinganghat, District Vardha (Maharashtra) certifying him to be a member of 'Mahar' community. After detailed inquiry, in view of direction issued by High Court in WPS No.7353/2009 as also 4 considering directions issued by Hon'ble Supreme Court in case of Madhuri Patil vs. Additional Commissioner Tribal Development reported in AIR 1995 SC 9; Director, Tribal Welfare Andhra Pradesh vs. Laveti Giri reported in AIR 1995 SC 1506 and Notifications/Circulars issued by the Government of India on different dates, came to conclusion that the Sub-Divisional Officer (City), Raipur has erroneously issued caste certificate in favour of petitioner on 21.2.2006 and cancelled the same, directing that petitioner can obtain caste certificate in view of order dated 22.2.1985 issued by the Government of India.
5. Mr. Parag Kotecha, learned counsel for petitioner would submit that father of petitioner initially joined his service as Daily Wage employee in undivided State of Madhya Pradesh i.e. Dhamtari; subsequently in the year 1972 petitioner was regularized; State of Chhattisgarh came into existence on 1.11.2000, hence, father of petitioner will be treated as 'involuntary migrant'. 'Mahar' caste to which petitioner belongs also enlisted in State of Chhattisgarh to be a caste falling under category of Scheduled Castes, hence petitioner is entitled to benefits of reservation. He contended that birth of petitioner and his entire education is in Dhamtari (Chhattisgarh). Even in erstwhile State of Madhya Pradesh, 'Mahar' caste is included in list of Scheduled Caste category. The Government of Chhattisgarh in its Circular dated 6.7.2004 (Annexure P-5) clarified that employees of State Government, 5 Corporations, Commissions and Public Sectors, who pursuant to division of cadre in between State of Madhya Pradesh and Chhattisgarh, came to Chhattisgarh will be treated as 'involuntary migrant' and they will be entitled to benefits of reservation. Prior to aforementioned Circular, the Government of Chhattisgarh considering difficulties of persons entitled for reservation of not producing relevant documents, issued Circular dated 21.7.2003. Clause (5) of Circular dated 21.7.2003 says that if an applicant failed to produce any document of permanent residence of State of Chhattisgarh, then the authority concerned to conduct enquiry based on information available with it and to issue caste certificate. Referring to Circular dated 27.6.2007 issued by State of Chhattisgarh in which the word 'permanent residence' is defined, he submits that father of petitioner falls within category 'permanent resident' because of allocation of petitioner's father to Chhattisgarh. The High Court in a batch of writ petitions, leading case of which was WPS No.3338/2007, parties being Dinesh Kumar Vs. State of CG & ors, by detailed order dated dated 19.8.2010 (Annexure P-7) specified as to how inquiry is to be conducted by Caste Scrutiny Committee for issuance of social status certificate to applicant and inquiry by Vigilance Cell etc. He also referred to Clause (j) and Paragraph 29 of order dated 19.8.2010 and submitted that High Court in aforementioned order considered judgements passed by Hon'ble Supreme Court in case of Sudhakar Vithal Kumbhare v. State of Maharashtra & ors 6 reported in (2004) 9 SCC 481 and observed for granting benefit to similarly situated persons. Referring to Paragraph 29 of order dated 19.8.2010 passed in WPS No.3338/2007, it is argued that Hon'ble Supreme Court in case of State of Maharashtra vs. Milind & ors reported in (2001) 1 SCC 4 held that no action to be taken against petitioner therein. Petition filed by petitioner bearing WPS No.7353/2009 was allowed in similar terms, hence respondent No.2 ought not to have cancelled caste certificate already issued to petitioner by Competent Authority. Caste Certificate was not cancelled on the ground of competency or jurisdiction of the Sub-Divisional Officer (City), Raipur, who had issued social status certificate in favour of petitioner. Hon'ble Supreme Court recently in case of Pankaj Singh vs. State of Jharkhand reported in 2021 SC Online 616 while considering status of person migrated on account of reorganization of State has held that person migrated due to reorganization of State is entitled to claim privileges and benefits of reservation in successor State.
He submits that order dated 29.2.2021, which is part of Annexure P-6, be set aside and petitioner be allowed to continue to work as Assistant District Public Prosecution Officer at his place of posting based on his social status certificate (Annexure P-1).
6. On the other hand, Mr. Vimlesh Bajpai, learned Government Advocate for the State opposes submissions of learned counsel for petitioner and would submit that petitioner is not 7 entitled for issuance of social status certificate in the form in which certificate is issued to petitioner because ancestors of petitioner were residents of area falling within territories of State of Maharashtra. In application submitted for verification of caste certificate, petitioner mentioned that his ancestors are resident of village Kori, Tahsil Samudrapur, District Vardha (Maharashtra). As ancestors of petitioner are not permanent resident of geographical boundary of erstwhile State of Madhya Pradesh and father of petitioner migrated from Maharashtra to Dhamtari, part of the then State of Madhya Pradesh, on submission of application for verification of social status caste certificate by petitioner, a detailed inquiry was conducted based on information supplied by petitioner. In inquiry petitioner was also afforded opportunity of hearing. After conducting inquiry, the Vigilance Cell opined that petitioner is not entitled for benefit of reservation in State of Chhattisgarh. Respondent No.2 considering direction issued by High Court in WPS No.3338/2007, done verification of caste certificate submitted by petitioner and came to conclusion that caste certificate is erroneously issued to petitioner and cancelled the same, which does not call for any interference. He pointed out that petitioner obtained false social status certificate, hence no benefit can be extended to him and he has to face consequences of cancellation of his caste certificate. He relies upon judgment of Hon'ble Supreme Court in case of Food Corporation of India vs Jagdish Balaram Bahira & ors reported in (2017) 8 SCC 670. 8
7. I have heard learned counsel for parties and perused documents brought on record by both sides.
8. Based on submissions of learned counsel for petitioner, following questions arise for consideration of this Court;
• Whether father of petitioner is a migrant covered under Circulars issued by the Government of Chhattisgarh on 21.7.2003 & 6.7.2004?
• Whether status of petitioner's father is of 'involuntary migrant'?
9. To appreciate submissions of learned counsel for petitioner, it would be proper to consider undisputed facts of case. As per case of petitioner, his father came to Dhamtari, part of erstwhile State of Madhya Pradesh; joined service in Mahanadi Reservoir Project Dam Division, Dhamtari, District Raipur as a Daily Wage employee and subsequently in the year 1972 regularized on post of 'Typist'. Petitioner's father was never compelled or forced by any service condition to migrate and join his service in Dhamtari. In fact, it was his first employment in aforementioned department of Dhamtari. Ancestors of petitioner are not permanent residents of geographical boundary of undivided State of Madhya Pradesh, but were residents of village Kori, District Vardha (Maharashtra). Presidential Notification with respect to castes and their origin in specified States mentioned in Notification is issued in the year 1950. Residential status of any person for 9 purpose of availing benefits of reservation based on social status certificate/ caste certificate is to be considered as on the date of issuance of Presidential Notification in the year 1950. After issuance of Presidential Notification, if any person is migrated to another State where also caste of migrant is shown to be in category of scheduled castes or scheduled tribes or other backward classes, as the case may be, then migrant could not get benefit of reservation in migrated State, migrant will be entitled for benefits of reservation in his State of origin. The Government of India issued clarificatory Notification on 22.3.1977 (Annexure R-2) with regard to issuance of scheduled castes and scheduled tribes certificates. Relevant portion of Notification dated 22.3.1977 is extracted below for ready reference:-
"2..... Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the literal or ordinary sense of the word. On the other hand, it connotes the permanent residence of a person on the date of the notification of the Presidential order scheduling his caste/tribe in relation to that locality. Thus a person who is temporarily away from his permanent place of a bode at the time of the notification of the Presidential order applicable in his case, say for example, to earn a living or seek education etc. can also be regarded as a Scheduled Caste or Scheduled Tribe, as the case may be, if his caste/tribe has been specified in that order, in relation to his State / U.T.. But he cannot be treated as such in relation to the place of his temporary residence not 10 with standing the fact that the name of his caste/tribe has been scheduled in respect of that area in any presidential order.
3. It is to ensure the veracity of this permanent residence of a person and that of caste/tribe to which he claims to belong that the Government of India has made a special provision in the proforma prescribed for the issue of such certificate. In order that the certificates are issued to the deserving persons, it is necessary that proper verification based primarily on revenue records and if need be, through reliable enquiries, made before such certificates are issued............ Thus the Revenue Authority of one District would not be competent to issue such a certificate in respect of persons belonging to another district. Nor can such an authority of one State/Union Territory issue such certificates in respect of persons whose place of permanent residence at the time of the Notification of a particular Presidential order, has been in a different State / Union Territory. In the case of persons born after the date of notification of the relevant Presidential Order, the place of residence for the purpose of acquiring Scheduled Caste or Scheduled Tribe status, is the place of permanent abode of their parents at the time of the notification of the Presidential Order under which they claim to belong to such a caste / tribe.
4.... In order to check the issuance of false certificates, the question for verification assumes all the more importance....."
The Government of India issued another clarificatory Notification on 22.2.1985 and relevant portion of which reads thus:-
11
"2. It is also clarified that a Scheduled Caste / Tribe person 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 Scheduled 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.
3. This letter substitutes this Ministry's earlier letter of even number dated 18th November 1982."
10. Even the Government of Chhattisgarh issued Circulars in the year 2003 & 2004. In Circular issued on 21.7.2003, the words 'migrant' and 'involuntary migrant' are defined. Object of issuing Circular dated 21.7.2003, as it is appearing, is to give certain relaxation to applicants in enclosing entire documents along with application Form and to fix guidelines as to how application for grant of caste certificate is to be considered and social status certificate is to be issued. Clause (5) of Circular dated 21.7.2003 talks about enquiry whether applicant's ancestors are residing in State of Chhattisgarh prior to 1950 or came from another State and settled in State of Chhattisgarh after 1950. In Circular dated 6.7.2004 benefit of reservation is extended to 'involuntary migrants' i.e. government employees or employees of other departments like Municipal Corporations etc. based on division of cadre on reorganization of State of Madhya Pradesh. In light of subsequent Circulars issued by Government of India as also Government of Chhattisgarh, case of petitioner's father does not fall within purview of 'involuntary migrant'. Hence, 12 submission of learned counsel for petitioner that since father of petitioner was working in Dhamtari since 1969 i.e. prior to reorganization of State of Madhya Pradesh, petitioner is entitled for benefits of 'involuntary migrant', is not sustainable.
11.While conducting inquiry based on details submitted by petitioner, a meeting (pkSiky) was convened in village Kori, Tahsil Samudrapur, District Vardha (Maharashtra) on 26.7.2011 in which villagers appeared from whom inquiry was done with respect to father of petitioner and his ancestors. In inquiry report dated 2.8.2011 it is mentioned that prior to issuance of Presidential Notification dated 10.8.1950, father of petitioner was resident of village Kori, District Vardha (Maharashtra) and not of any part of geographical boundary of State of Madhya Pradesh or Chhattisgarh. Father of petitioner came to Dhamtari only in the year 1968. Vigilance report contained family tree of petitioner, which is not disputed by petitioner.
12. So far as submission of learned counsel for petitioner based on order dated 19.8.2010 passed in WPS No.3338/2007 and other connected matters, is concerned, by virtue of that order writ petition of petitioner was allowed, matter was remitted back for conducting fresh enquiry with respect to caste certificate by constituting Vigilance Cell and giving opportunity of hearing to petitioner. It is not the case of petitioner before this Court that inquiry was not conducted in proper manner, rather case of petitioner is only that as father of petitioner 13 comes within category of 'involuntary migrant', petitioner is entitled to benefits of reservation. After allowing of earlier writ petition in terms of order dated 19.8.2010, respondent No.2 reconsidered entire claim of petitioner and by impugned order came to conclusion that social status certificate of petitioner is erroneous.
13. Hon'ble Supreme Court in case of Jagdish Balaram Bahira's case (supra) after taking into consideration its earlier decisions has held thus:-
"24.The next decision which is of relevance on the issue, is a judgment of three Judges of this Court in R. Vishwanatha Pillai Vs. State of Kerala 4. In that case the appellant who did not belong to a designated reserved community obtained a caste certificate and was selected as a Deputy Superintendent of Police on a seat reserved for the Scheduled Castes. However, it was found upon a complaint that the appellant did not belong to a Scheduled Caste and the Scrutiny Committee rejected his claim. The order of the Scrutiny Committee was upheld by the High Court and by this Court. Subsequently at the behest of the appellant the Central Administrative Tribunal directed that he should not be terminated from service without following the procedure under Article 311. The High Court reversed that decision and the appellant was dismissed from service. Before this Court the appellant inter alia sought protection since he had rendered nearly 27 years of service. Rejecting the submission this Court held that;
15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste 14 community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India, Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India, As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."
The Bench of three Judges also rejected the submission that since the appellant had rendered 27 years of service, the order of dismissal should be substituted with an order of compulsory retirement or removal to protect his pensionary benefits. The Court 15 observed :
"19.....The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who, seeks equity must come with clean hands. He. who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."
After aforementioned consideration of earlier decisions and observations made therein, Hon'ble Supreme Court recorded following findings:-
"69. For these reasons, we hold and declare that:
69.1. The directions which were issued by the Constitution Bench of this Court in paragraph 38 of the decision in Milind were in pursuance of the powers vested in this Court under Article 142 of the 16 Constitution;
69.2. Since the decision of this Court in Madhuri Patil which was rendered on 2 September 1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for
(a) the issuance of caste certificates;
(b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government;
(c) the procedure for the conduct of investigation into the authenticity of the claim;
(d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine;
(e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and
(f) Prosecution for a criminal offence;
69.3. The decisions of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by benches of three Judges laid down the principle of law that where a benefit is secured by an individual- such as an appointment to a post or admission to an educational institution- on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est. 69.4. The exception to the above doctrine was in those cases where this Court exercised its power 17 under Article 142 of the Constitution to render complete justice;
69.5. By Maharashtra Act XXIII of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section 4); constitution of Scrutiny Committees for verification of claims (Section 6) submission of applications for verification of caste certificates (Section 6 (2) and 6 (3); cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section 10); and initiation of prosecution (Section 11), amongst other things. 69.6. The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18 October 2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;
69.7.Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;
69.8. The decisions in Kavita Solunke and Shalini of two learned Judges are overruled. Shalini in so far as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law;
69.9. Mens rea is an ingredient of the penal 18 provisions contained in Section 11. Section 11 is prospective and would apply in those situations where the act constituting the offence has taken place after the date of its enforcement;
69.10. The judgment of the Full Bench of the Bombay High Court in Arun Sonone is manifestly erroneous and is overruled; and 69.11. Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act 23 of 2001 holds the field."
14. In case of Subhash Chandra & anr Vs. Delhi Subordinate Services Selection Board & ors reported in (2009) 15 SCC 458 Hon'ble Supreme Court considering status of migrants for getting benefits of reservation in migrated State has held thus:-
"40.The question which was posed was the effect of specification by the President of the Scheduled Castes or Scheduled Tribes, as the case may be, for the State or Union territory or part of the State. Noticing that the specification was "for the purposes of this Constitution", it was found to be necessary to determine what the expression `in relation to that State' seeks to convey. This Court noticed not only the various provisions of the Constitution but also the earlier decisions governing the field as well as the views of Dr. B.R. Ambedkar in the Constituent Assembly, to hold: (Marri Chandra Shekhar Rao Case1, SCC p. 147, para 22) "22. In that view of the matter, we are of the 19 opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe Certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admitted as being domicile does not fall for consideration."
15. Full Bench of Bombay High Court in case of Kumari Shweta Shantalal Lal vs. State of Maharashtra reported in 2010 (2) Mh.L.J. 904 has held thus:-
"26.Having said so, we may now answer the Reference. In case of a migrant belonging to a Scheduled Caste, not ordinarily resident as on10.3.1950 in the area that now constitutes the State of Maharashtra and in a case of S.T.,considering Rule 5, on 6.9.1950, would not be entitled to benefits of reservation as S.C./S.T. in the State of Maharashtra. They and their progeny will continue to get the benefits of reservation in the State of origin. Reference answered accordingly."
16. In Writ Appeal No.50/2018, parties being Chhattisgarh Hastshilp Vikas Board & another vs. Dilip Hedau & ors, challenge was to order dated 2.1.2017 by which learned Single Judge considering decisions of Hon'ble Supreme Court in case of Milind (supra); Kavita Solunke vs. State of Maharashtra & ors reported in (2012) 8 SCC 430; R. Unnikrishnan & anr Vs. V.K. Mahanudevan & ors reported in (2014) 4 SCC 434, allowed writ petition of petitioners therein; set aside order of termination from services and reinstated them in service with full back wages, Division Bench of this High Court considering decision of Hon'ble Supreme Court in case of Jagdish Balaram Bahira (supra) 20 held thus:-
"22.The Hon'ble Supreme Court has very succinctly observed in Food Corporation of India (supra) that the legal system cannot be seen as an avenue of support to those who make untrue claims to belong to a caste or tribe or socially and educationally backward class. These benefits are provided only to designated castes, tribes or classes in accordance with the constitutional scheme and cannot be usurped by those who do not belong to them. The credibility, not merely of a legal system but also of the judicial process would be eroded if such claims are protected in exercise of constitutional powers conferred by Article 142 of the Constitution despite the State law.
23.This Court cannot put the issue confronting the present litigation in any better words, therefore, there is no scape for the private Respondent from the rigors of law. In fact by not interfering with the impugned order of the learned Single Judge dated 02.01.2017, the constitutional Court would be failing in its duty by allowing illegality to be perpetuated and constitution to be violated by the private Respondent."
17. In view of above rulings of Hon'ble Supreme Court, if facts of present case are considered, it is clear that father of petitioner migrated from Maharashtra to erstwhile State of Madhya Pradesh in 1968; he got employment on daily wages and subsequently his services were regularized. Hence, petitioner's father cannot be said to be 'involuntary migrant'. State of origin of petitioner's father is State of Maharashtra. In 21 light of above dictum of Hon'ble Supreme Court and Full Bench of Bombay High Court, petitioner cannot get benefits of reservation in migrated State i.e. State of Chhattisgarh,
18. Submission of learned counsel for petitioner that as father of petitioner was employed in erstwhile State of Madhya Pradesh; only after reorganization of State of Madhya Pradesh and formation of State of Chhattisgarh, father of petitioner came within territory of Chhattisgarh, hence petitioner is entitled for benefits of reservation, is also misplaced. Petitioner's father was not permanent resident of erstwhile State of Madhya Pradesh prior to 1950 i.e. since the date of issuance of Presidential Order. It is case of petitioner himself that father of petitioner came from Maharashtra to erstwhile State of Madhya Pradesh in the year 1968. Hence, benefits of reservation cannot be extended to petitioner as extended to employees of State Government / Municipal Corporation or other statutory bodies treating them to be involuntary migrants as they came to State of Chhattisgarh by virtue of cadre distribution. Therefore, in the opinion of this Court, petition being devoid of any substance is liable to be dismissed.
19. It is also not a case that petitioner continued in service for long period before taking any action of caste verification, but it is a case where immediately after appearance of petitioner's name in select list, petitioner and others were asked to get their social status certificate verified from the Committee and 22 immediately thereafter it is reported that petitioner is not entitled for benefit of reservation based on certificate, in the year 2009 itself.
20. As regards the judgment of Hon'ble Supreme Court in case of Pankaj Kumar (supra) reliance on which is placed by learned counsel for petitioner, the same being entirely different on facts is of no help to petitioner. In that case, father of appellant therein originally belonged to District Patna in State of Bihar. Appellant born in Hazaribagh where his father was residing and which was part of erstwhile State of Bihar. But, after coming into force of Bihar Reorganization Act, 2000, District Hazaribagh became part of successor State of Jharkhand and in that facts of case, Hon'ble Supreme Court considered the issue of voluntary and involuntary migration of members of Scheduled Castes, Scheduled Tribes and Other Backward Classes from one State to another and protected benefit of reservation including privileges and benefits to appellant therein in successor State for all practical purposes including for public employment also. In that judgment itself Hon'ble Supreme Court exercised power under Article 142 of the Constitution of India for other appellants in another civil appeal. Hence, in the opinion of this Court, the petitioner cannot be granted any benefit of judgment relied upon by him.
21. So far as submission of learned counsel for petitioner that respondent No.2 at one hand cancelled caste certificate of petitioner and at another hand directed him to apply for caste 23 certificate based on Circular dated 22.2.1985 is concerned, Circular referred above is issued by the Government of India protecting migrants from difficulty to obtain social status certificate from the State from which they have migrated. Rule 11 of the Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certificate) Rules, 2013 (for short 'the Rules of 2013') also provides for issuance of certificate in Form-C to the applicants who migrated from another State to the State of Chhattisgarh. Hence, petitioner can very well apply under Rule 11 of the Rules of 2013 and obtain social status certificate in Form-C. If any such application is filed by petitioner under Rule 11 of the Rules of 2013, the Competent Authority may consider it strictly in accordance with the Rules of 2013 and Circulars/ Notifications issued by Government of India as also Government of Chhattisgarh.
22. The writ petition is accordingly dismissed.
Sd/-
(Parth Prateem Sahu) Judge roshan/-