Bombay High Court
Kum Shweta Santalal Lal vs The State Of Maharashtra on 3 March, 2010
Equivalent citations: 2010 (3) AIR BOM R 104, 2010 A I H C 3505
Author: Ferdino I. Rebello
Bench: F.I. Rebello, D.Y. Chandrachud, J. H. Bhatia
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6060 OF 2008
WITH
WRIT PETITION NO. 4730 OF 2008
WITH
WRIT PETITION NO. 8884 OF 2009
WRIT PETITION NO. 6060 OF 2008
KUM SHWETA SANTALAL LAL )
Age 18 years, Occupation - Education )
Residing at Rom No.12, Dnyandevi Apartment, )
Mahim Road, Palghar, Tal. Palghar, )
Dist Thane - 401 404. )... Petitioner
Versus
1. The State of Maharashtra, )
Through its Secretary, )
Social Welfare, Cultural Affairs, )
Sports Department, Mantralaya, )
Mumbai 400 032. )
2. The Director, )
Directorate of Technical Education, )
Maharashtra State, )
3, Mahapalika Marg, Post Box No.1967, )
Mumbai-1. )
3. The Registrar, )
Pune University, Pune. )
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4. Pravara Rural Engineering College,Loni, )
Through its Principal, )
A/P Loni, Tal. Rahata, Dist. Ahmednagar. )
5. Pravesh Niyantran Samiti, )
Through its Chairman, )
305, 3rd Flloor, Government Polytechnic )
Building, 49, Kherwadi, Ali Yawar Jung )
Marg, Bandra (East), Mumbai 400 051. )
6. Divisional Caste Scrutiny Committee )
Through its Secretary, )
Mumbai Division, Konkan Bhavan, )
Navi Mumbai, Dist. Thane. )
7. The Deputy Collector,
ig )
Office of Collector, Thane. )..Respondents
WITH
WRIT PETITION NO. 4730 OF 2008
Shivnath Sitaram Kori )
Aged 22 years, residing at )
6/H/5 Transit Camp, Dharavi, )
Mumbai - 17. )... Petitioner
Versus
1. State of Maharashtra )
through its Secretary, )
Social Justice Department, )
Mantralaya, Mumbai - 32. )
2. Divisional Caste Certificate )
Scrutiny Committee, Mumbai )
Division, through its Member-Secretary, )
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having its office at Konkan Bhavan, )
5th floor, CBD, Belapur, Navi Mumbai. )
3. Competent Authority and Director, )
Technical Education, Maharashtra )
State,having its Office, at 3, Mahapalika )
Marg, Dhobi Talao, Mumbai-1. )
4. Yadavrao Tasgaonkar Institute of Pharmacy )
through its Principal, having its office )
at Dr. N.Y. Tasgaonkar Educational Complex)
Chandhai Bhivpuri Road Station, )
Tal. Karjat, Dist. Raigad. )..Respondents
ig WITH
WRIT PETITION NO. 8884 OF 2009
Abhishek Deepak Singh )
Age: 19 years, having permanent )
address at Harihar Singh Compound, )
Pratap Nagar, Jogeshwari (E), )
Mumbai 400 060. ).. Petitioner
V/s.
1. State of Maharashtra )
through its Department of Medical )
Education & Drugs, Mantralaya,Bombay. )
2. Director Medical Education & Research, )
St. Georges' Hospital Compound, Mumbai. )
3. The Caste Scrutiny Committee For )
Scheduled Tribes, Pune Region, Pune. )
4. The Dean, )
Nair Hospital & Dental College, )
Mumbai Central, Mumbai. )..Respondents
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Mr. Avinash H.Fatangale a/w Mr. S.V.Gavand, Advocates, for the Petitioner
in W.P.No.6060/2008.
Mr. Ravi Kadam, Advocate General a/w Mr. N.P.Deshpande, G.P. For
Respondent Nos.1, 2, 6 & 7.
Mr. R.K.Mendadkar, Advocate for Petitioner (in W.P.No.4730/2008.
Mr. Ravi Kadam, Advocate General a/w Mr. N.P.Deshpande, GP. For
Respondent Nos. 1 to 3.
Mr. V.M. Thorat a/w Ms. Pooja Thorat, Advocates, for Petitioner in W.P.No.
8884/2009.
Mr. Ravi Kadam, Advocate General a/w Mr. N.P.Deshpande, G.P. For
Respondent Nos. 1 to 3.
CORAM: FERDINO I.REBELLO,
DR.D.Y.CHANDRACHUD &
J.H.BHATIA, JJJ.
JUDGMENT RESERVED ON: 29.01.2010.
JUDGMENT PRONUNCED ON:03.03.2010.
JUDGMENT:(PER FERDINO I. REBELLO,J.)
1. A learned Division Bench of this Court by its order dated September 30, 2008, noted that it was unable to agree with the interpretation placed by another Bench of this Court in Hitesh Dasiram Murkute v. State of Maharashtra & Ors., 2007 (4) Bom.C.R.784 on the Judgment of the Hon'ble Supreme Court in Mari Chandrasshekhar Rao ::: Downloaded on - 09/06/2013 15:39:54 ::: 5 vs. Dean, G.S. Medical College & Ors., (1990) 3 S.C.C. 130. The Bench further observed that prima facie they are also not in agreement with the interpretation placed by the Division Bench Judgment of this Court in Bankimchandra vs. State of Maharashtra, 2006 (Supp.) Bom. CR.769.
The learned Chief Justice was thereafter pleased to constitute a Bench for hearing and final disposal of these matters. Considering the controversy, we had also by an order dated November 25, 2009, requested the learned Advocate General to assist the Court and also called on other Counsel, who may be directly affected, to address this Court.
2. The question framed for consideration reads as under :-
"Whether a person who was not ordinarily resident as on the date of the relevant Presidential Notification in the area that now constitutes the State of Maharashtra will be entitled to the benefit of reservation in the State."
3. In our opinion, the law as to whether a migrant belonging to the Scheduled Caste or Tribe is entitled to the benefits of reservation in the State of migration, considering the Constitution Bench Judgment of the Hon'ble Supreme Court in Mari Chandrashekhar Rao vs. Dean, Seth ::: Downloaded on - 09/06/2013 15:39:54 ::: 6 G.S. Medical College & Ors., (1990) 3 SCC 130 and the Judgment of another Constitution Bench in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and Anr. (1994) 5 SCC 244 may no longer be res-integra.
4. It appears that the learned Division Bench, which proceeded to pronounce the Judgment in the case of Hitesh D. Murkute (supra) relied on the Judgment of a Bench consisting of three Judges of the Supreme Court in the case of Sudhakar Vithal Kumbhare vs. State of Maharashtra & Anr., (2004) 9 SCC 481, which had been noted by another Division Bench of this Court in Bankimchandra Makanbhai Patel (supra). The view taken in Hitesh D.Murkute, appears to have been reiterated in Santosh Padoti v/s. Caste Scrutiny Committee, 2006 (Supp) BCR 797 and Sheetal Manikrao Dupare vs. State of Mahaashtra 2007 (6) BCR 332.
5. At the outset, we may note that in Marri Chandrashekhar Rao (supra), the issue before the Supreme Court was whether, a person who is a member of a Scheduled Tribe, notified in State A who or ::: Downloaded on - 09/06/2013 15:39:54 ::: 7 whose progeny migrate to State B, then is such person entitled to the benefit of reservation in the State of migration i.e. State B. After considering the various Constitutional provisions and more specifically after examining the scope and ambit of Articles 14, 15, 16 and on the one hand and Articles 341 and 342 on the other, the Constitution Bench of the Supreme Court was pleased to hold that such a migrant is not entitled for benefits as a Scheduled Tribe in the State of Migration. In the course of our discussion, we will refer to some of the observations of the Supreme Court on this aspect.
6. Then in the case of Action Committee (supra), the question posed by the Constitution Bench was as under :-
"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 where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste 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 Schedule Tribes in State B?"::: Downloaded on - 09/06/2013 15:39:54 ::: 8
In the course of the arguments, a contention was urged on behalf of the respondent, before the Supreme Court that all the arguments which were being advanced had been advanced in the case of Marri Chandrashekhar Rao (supra) and answered. The Supreme Court in emphatic terms observed "In fact we are in complete agreement with the interpretation placed on the various provisions of the Constitution, in particular Articles 341 and 342 thereof, in the said judgment". In other words, the Court held that even in respect of a person who belongs to a tribe notified as a S.T. in the State and having the same nomenclature is also notified as a tribe in the State of migration, yet such migrant would not be entitled to the benefits of reservation in the State of migration. Such person would continue to get the benefit in the State of his origin.
7. We may now refer to the Judgment in Sudhakar Kumbhare (supra). In Sudhakar Kumbhare, the Supreme Court was considering the case of a person who had migrated from a region falling in the State of Madhya Pradesh to the State of Maharashtra. The Court there observed that the tribe had its origin in Chhindwara region, a part of which, that is Chandrapur, on States Reorganization, came to be allotted to the State of Maharashtra from the State of Madhya Pradesh. We may gainfully refer to ::: Downloaded on - 09/06/2013 15:39:54 ::: 9 the following observations in Kumbhare's case.
"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 other State whose Governor has not been consulted; but it is another thing to say that when an area 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 the Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of States' Reorganization 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 the part of area of Chandrapur at one point of time belonged to the same region and under the Constitutional Scheduled Tribe 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 ::: Downloaded on - 09/06/2013 15:39:54 ::: 10 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." (emphasis supplied).
9. In Bankimchandra, Kumbhare's case was noted. The Division Bench of this Court in Bankimchandra noted the provisions of the Bombay Reorganization Act and more specifically Sections 26 and 27 and some other provisions which we may gainfully reproduce :
"Next we may refer to the relevant provisions of the Bombay Reorganization Act, 1960 which received the assent of the President of India on 25-4-1960 and in respect of which, the appointed date has been fixed as 1-5-1960. Sections 26 and 27 of the Act are relevant and may be gainfully reproduced :
26. As from the appointed day, the Constitution (Scheduled Castes) Order, 1950 shall stand amended as directed in the Seventh Schedule.
27. As from the appointed day, the Constitution (Scheduled Tribes) Order, 1950, shall stand amended as directed in the Eighth Schedule.
The 8th schedule amended the Constitution (Scheduled Tribes) Order, 1950. Para 3 was substituted as under :::: Downloaded on - 09/06/2013 15:39:54 ::: 11
3. Any reference in this Order,' except Parts IV and VII-A of the Schedule, to a State or to a district or other territorial division thereof, shall be construed as a reference to the State, district or other territorial division, constituted as from the 1st day of November, 1956, and any reference in Parts IV and VII-A of the Schedule to a State or to a district or other territorial division thereof shall be construed as a reference to the State, district or other territorial division, constituted as from the 1st day of May, 1960.
We may also refer to Para 2 of the Constitution (Scheduled Tribes) Order, 1950 which reads as under:
2. The tribes or tribal communities, or parts of or groups within, tribes or tribal communities, specified in (Parts) to (XVIII) of the Schedule to this Order shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule.
Part IV was substituted by inserting Part IV-Gujarat. The notified Schedule Tribes in the State of Gujarat are set out therein. Part VIIA is for Maharashtra and notified Scheduled tribes in the State of Maharashtra are set out therein."
had not been considered in Kumbhare's case.
The Division Bench then noted as under :-
"In other words, though the Presidential Notification was issued in the year 1950 because of the State Reorganization Act, 1956 and Bombay State Reorganization Act, the benefits would be available to only those persons amongst the notified scheduled tribes who are residents in the localities. In other words, if on 1-1-1960, when the State of Maharashtra came into being, if there was a person belonging to any of the notified scheduled tribes in the State of Maharashtra and if he was resident in the localities in the State of Maharashtra only then shall such person will be entitled to the benefits as a member of the scheduled tribe in relation to that State ::: Downloaded on - 09/06/2013 15:39:54 ::: 12 provided he was also resident in the erstwhile State of Bombay on the date of the Presidential Notification dated 10-8-1950 and on 1-11-1956 when the new State of Bombay came into being. This would mean that only those members of the Scheduled tribes who are included as a notified scheduled tribes in the State of Maharashtra and who were and are permanent residents in the State of Maharashtra and in the localities in which they are notified as on 1-1-1960, would be entitled to be treated as S.T. in relation to the State of Maharashtra, This aspect has not been considered by both the division Benches as their attention was not drawn to the same. The same reasoning will also apply insofar as scheduled castes are concerned."
We may also note that by virtue of the provisions of the State Re-organization Act, it is Parliament that amended the Presidential Notification specifying the S.T.s and S.C.s recognised in the new State. The State of Maharashtra had no say in the matter as that was beyond its competence and exclusively within the domain of Parliament.
9. If such construction is not to be accepted in view of the observation in Kumbhare (supra), as understood in Markute (supra) and the date of the Presidential notification i.e. 10th August, 1950 is considered without reference to the reservaton in the geographical area of the new State of Maharashtra, then all S.T.s in the erstwhile geographical area of the Bombay State on the date of the Presidential Order would also be S.T.s . for the State of Bombay ::: Downloaded on - 09/06/2013 15:39:54 ::: 13 as also the State of Bombay which came into being in 1956 though they were not ordinarily resident of the State of Maharashtra on 10.8.1950. This would mean that S.T.s in the earlier geographical region of Bombay State as on 10-8-1950 though in some other State if notified, as S.T.s in that State, and also in the State of Maharashtra, though not resident in the State of Maharashtra, would be entitled to the benefits of S.T. Reservation in the State of Maharashtra . This would increase the population of S.T.s for the State of Maharashtra, and would deny to the members of the S.T.s ordinarily resident in the State of Maharashtra, the benefits of reservation as they would have to share the same with S.T.s having similar nomenclature from other States which formed the erstwhile State of Bombay as on 1-8-1950. The S.T.s of the other States at the same time would continue to get the benefit of reservation in the State of origin.
10. In Kumbhare's case (supra), the Supreme Court was pleased to observe as under :-
"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 ::: Downloaded on - 09/06/2013 15:39:54 ::: 14 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."
Based on these observations, the learned Division Bench in Hitesh D. Murkute and the other Division Benches which followed Murkute, were pleased to hold that if a region was divided amongst two States under the States Reorganization Act, then in such a case such a migrant from that region will be entitled to the benefit of reservation in the State of migration.
11. We may at once note that apart from the two distinct features which were pointed out in the case of Bankimchandra (supra), which considered the observations in Kumbhare, the attention of the Supreme Court was not drawn to Rule 5 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of Certificate Rules, 2003. We may gainfully refer to Rule 5(10)(c) with Explanation, which reads as under
:-
"5. Grant of Scheduled Tribe Certificate to migrated persons.
(1) Migration from other States to
Maharashtra State :-
(a) ....
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(b) ....
(c) A Scheduled Tribe Certificate holder who
has migrated to Maharashtra from the State of his origin for the purpose of seeking education, employment etc., will be deemed to be a Scheduled Tribe of the State of his origin and will be entitled to derive benefits from the state of his origin and not from the state of Maharashtra.
Explanation.- For the purpose of sub-rule (1), "Migrant from other State" means -
(i) a person who has migrated to Maharashtra State from any other State/Union Territory on or after the First Presidential Order i.e. 6th September 1950; (emphasis supplied).
(ii) a person whose tribe is scheduled as a Scheduled Tribe in his original State, but not in Maharashtra State and the person whose tribe is scheduled as Scheduled Tribe in Maharashtra State as well as in his original State having his ordinary residence on the date of the notification of Presidential Order scheduling his tribe has been in the State/Union Territory other than Maharashtra would both be treated as migrants."
12. It would thus be clear that insofar as State of Maharashtra is ::: Downloaded on - 09/06/2013 15:39:54 ::: 16 concerned, both classes of migrants will be treated as belonging to the Scheduled Tribe in the State of their origin and will be entitled to derive benefits in the State of their origin and not from the state of Maharashtra.
The Explanation further makes it clear that the cut-off date is 6 th September, 1950 even if there be some other subsequent Presidential Notification notifying some other tribes. Considering the explanation, what is relevant for considering is whether a person in the case of S.T. was ordinarily resident on 6th September 1950. Only such a person would be ordinarily resident in the geographical area now constituting the State of Maharashtra and will be entitled to the benefit of reservation in the State of Maharashtra.
13. Considering the observations in Kumbhare's case, we may only refer to the following observations in Action Committee (supra) :-
"It must also be realised that before specifying the castes or tribes under either of the two Articles the President is, in the case of a State, obliged to consult Governor of that State. Therefore, when a class is specified by the President, after consulting the Governor of State A, it is difficult to understand how that specification made 'in relation to that State' can be treated as specification in relation to any other State whose Governor the President has not consulted. True it is that this specification is not only in relation to a given State whose ::: Downloaded on - 09/06/2013 15:39:54 ::: 17 Governor has been consulted but is 'for the purposes of this Constitution' meaning thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. The Constitution Bench has, after referring to the debates in the Constituent Assembly relating to these Articles, observed that while it is true that a person does not cease to belong to his caste/tribe by migration he has a better and more socially free and liberal atmosphere and if sufficiently long time is spent in socially advanced areas, the inhibitions and handicaps suffered by belonging to-a specially disadvantageous community do not truncate his growth and the natural talents of an individual gets full scope to blossom and flourish. Realising that these are problems of social adjustment it was observed that they must be so balanced in the mosaic of the country's integrity that no section or community should cause detriment or discontentment to the other community. Therefore, said the Constitution Bench, the Scheduled Cases 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 to in order to become equals with others but those who go to other areas should ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. The Constitution Bench summed up as under:
In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes ::: Downloaded on - 09/06/2013 15:39:54 ::: 18 and Scheduled Tribes say of Maharashtra in the Instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic in mind, then the determination of the controversy in the instant case does not become difficult."
14. Before proceeding further, we may also refer to the Judgment in Subhash Chandra & Anr. vs. Delhi Subordinate Services Selection Board & Ors., 2009 (11) SCALE 278. That was a case where migrants in the Union Territory of Delhi, who were born in the geographical area of the Union Territory but whose parents had migrated after the Presidential Notification, claimed benefit of reservation to posts in the union Territory of Delhi. The argument was accepted by a learned Single Judge of the Delhi High Court and upheld by the Division Bench. The matter went in appeal to the Supreme Court. After considering the various Judgments, including two Constitution Bench Judgments referred to earlier, the Supreme Court was pleased to observe that they are bound by the Constitution Bench Decision in Marri Chandrashekhar Rao and accordingly set aside the orders passed by the Delhi High Court. In other words, children of migrants are not entitled to the benefit of reservation even if they have the same nomenclature as the Scheduled Caste notified for the Capital Territory of Delhi.
::: Downloaded on - 09/06/2013 15:39:54 ::: 1915. In our opinion, we may once again refer to Marri Chandrashekhar Rao (supra) to consider the effect of Articles 14, 19(1)
(d), 19(1)(e) and 19(1)(f) and whether this could be given effect to by construing Article 342. This was answered by the Constitution Bench in the following words :-
"The words "for the purposes of this Constitution" must mean that a Scheduled Caste so designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. The expression "in relation to that State" would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere of Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which ::: Downloaded on - 09/06/2013 15:39:54 ::: 20 will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution."
16. The Constitution Bench also noted the fate of such migrants and answered that question in para 23 of its Judgment which we may gainfully refer and which reads as under :-
"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those scheduled caste and scheduled tribe students who get the protection of being classed as scheduled caste or scheduled tribes in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary ::: Downloaded on - 09/06/2013 15:39:54 ::: 21 transfer, will they be entitled to some sort of protective treatment so that may continue or pursue their education.
Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to other is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has so migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration."
17. It is possible that merely because of migration, the disadvantages which a person belonging to a backward class suffers from may not disappear even in the State of migration. That however has to be read in the context of the words `for the purpose of the Constitution' and `in relation to that State' and the Presidential Notifications notifying the ::: Downloaded on - 09/06/2013 15:39:54 ::: 22 various castes and tribes for each State. In Bankimchandra, this aspect was noted and the consequences that would follow if migrants from another State which formed a part of the region before its bifurcation, were granted the benefits in the State of migration. Reservation is based on the population of the communities in that State. In Maharashtra, it is 9% for Scheduled Tribes and 13% for Scheduled Castes. The present State of Maharashtra, at the time of coming into force of the Constitution, formed a part of the larger State of Bombay which was a large geographical area.
This State of Bombay thereafter was reorganized in 1956. Thereafter, there was further reorganization on 1.5.1960. The consequences of accepting the argument would be, that all the caste and tribes notified in the Presidential Notification in the erstwhile State of Bombay at the time of coming into force of the Constitution if notified for the State of Maharashtra would also be entitled to the benefits in the new State. In our opinion, this would run counter to the ratio of the Judgment of the Constitution Benches in Marri Chandra Shekhar Rao and Action Committee which have explained and interpreted Articles 341 and 342 of the Constitution. As long as Parliament or the State Legislature does not make any law as noted by the Supreme Court in Marri Chandra Shekhar Rao, reproduced earlier, the migrants in the State of migration will not be entitled to the benefits of reservation in ::: Downloaded on - 09/06/2013 15:39:54 ::: 23 the State of migration, but will continue to enjoy the benefits in their home State or State of origin. The issue of who is ordinarily resident is also no longer open for consideration as there are various Presidential Notifications on that count. In Action Committee, the learned Constitution Bench has referred to the various notifications in the matter which have been issued.
The communication of 22.3.1977 was quoted wherein it has been set out as under :-
"Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the liberal or ordinary sense of the word. On the other hand it cannotes 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."
In the Notification dated 6.8.1975, in respect of persons who have been born after the date of Presidential Notification, it is provided as under :-
"In regard to persons born after the date of the notification of the relevant Presidential Order, the communication states that the place of residency for the purpose of acquiring scheduled caste or Scheduled Tribe ::: Downloaded on - 09/06/2013 15:39:54 ::: 24 certificate 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."
Then referring to the letter of February 12,1981, it was stated:
"it was further clarified that in order to become eligible for being treated to be a member of Scheduled caste/Tribe in relation to the State of Maharashtra a person should be a permanent resident of the State of Maharashtra before 10.3.1950 and 6.9.1950 respectively, the dates of the notifications of the respective Presidential Orders of 1950 scheduling the castes/tribes in relation to the State of Maharashtra.
Since there was no State of Maharashtra in 1950,it would be reasonable to understand it to mean the geographical area now forming part of the State of Maharashtra.",
18. A person does not cease to belong to his caste/tribe on migration to an area more advanced with a more liberal atmosphere.
The long residence in such State of migration could result in the handicaps suffered by belonging to a socially disadvantageous community being tempered down. While enacting Articles 341 and 342, the Constitution Fathers did note these aspects. Firstly, by limiting it initially for a time-frame with the hope and expectation that education and socio- economic justice would result in these communities becoming socially and economically forward. At the same time, the Constitution Fathers in relation to the State also noted that benefits must go to those socially and ::: Downloaded on - 09/06/2013 15:39:54 ::: 25 economically disadvantaged in the geographical area of that State. Considering the tribes and castes notified by the Presidential Orders, all such castes and tribes would be getting benefits of reservation in the State of their origin. The Court in Marri Chandrashekhar Rao also noted where there may be cases of persons migrating individually for the purpose of employment, etc. but having construed Article 342, the Court left it to the wisdom of Parliament to provide benefits in the State of migration.
19. It was sought to be contended on behalf of Counsel supporting the view taken in Hitesh D. Murkute (supra) that in Action Committee (supra), the learned Supreme Court had not answered the issue, but had left it open for consideration and in that context, the Judgment in Kumbhare's case (supra) must be understood.
We are of the opinion that this argument is untenable. The learned Supreme Court in Action Committee, clearly considered every aspect of the matter. The issues were considered in the context of the arguments advanced that the issue was covered by the Constitution Bench Judgment in Marri Chandrashekhar Rao. The Judgment in Marri Chandrashekhar was analysed and the Court found that the same arguments which were rejected in Marri Chandrashekhar were once again sought to be canvassed in Action Committee and rejected the said ::: Downloaded on - 09/06/2013 15:39:54 ::: 26 contention, by holding that the Court was in agreement with the interpretation placed on the various provisions of the Constitution, particularly Articles 341 and 342. It was further observed that nothing had been pointed out to persuade the Constitution Bench, that the view taken by the earlier Constitution Bench required reconsideration by a larger Bench.
20. Shri Mendadkar sought to contend that what was relevant is not the date of migration, but the date of inclusion of caste or tribe in the Schedule. In our opinion, there possibly could have been no difficulty in accepting that proposition, considering that the person must be ordinarily resident on the date of the Presidential Notification in the geographical area from which such person claims the benefit.
However now in the Maharashtra Rules, the date for S.T. has been set out 6th September 1950 and for S.C., considering the various Government communications, including the letter of February 12, 1981 it will be 10.3.1950. Shri Mendadkar also sought to point out that the statement in Bankimchandra, that attention of the Apex Court was not invited to the provisions of the State Reorganization Act or the Bombay State Reorganization Act was incorrect. Reference was made in para 5 of ::: Downloaded on - 09/06/2013 15:39:54 ::: 27 the Judgment in Kumbhare's case. Nowhere in Kumbhare's case the issue of the States Reorganization Act and amendment to the Presidential Order has been discussed. Whatever may be the position, Rule 5(c) and Explanation thereto was not considered
21. If we now consider the discussion and the ratios of the Judgments which are referred to earlier, the position in law would be that the ratio in Marri Chandra Shekhar Rao (supra) as affirmed in Action Committee, is the law declared by the Supreme Court. In other words, if a person migrates to a geographical area forming part of another State after the date of Presidential Notification, such a person will be treated as a migrant. So also, the children of such migrants born after the date of Presidential Notification will be entitled to the benefits of reservation in the State where their parents were ordinarily resident. Marri Chandrashekhar Rao (supra) makes that position clear.
22. Having said so, we may now consider the proposition in Hitesh D. Murkute (supra). The learned Bench down there had summed up its conclusions in para 41, which we may reproduce hereinbelow.
::: Downloaded on - 09/06/2013 15:39:54 ::: 28"41. To sum up:
(i) It is necessary to give full effect to both the expressions "for the purpose of this constitution" as well as "in relation to the State", appearing in Articles 341 and 342 of the Constitution and Clause 2 of the Constitution Scheduled Tribe and Scheduled Castes Orders, 1950, in order to identify the beneficiary correctly i.e. by ensuring that he belongs to caste identified with reference to a state as scheduled caste or tribe.
(ii) The object of including a caste or a tribe in the schedules to the orders was to do away with their disadvantaged position in the areas where they resided vis a vis other population. The crucial test would therefore be whether the person concerned suffers the same degree of disadvantage vis-a-vis other segments, as other local people of his caste suffer or whether as a migrant, he is placed on a higher pedestal.
(iii) Extending benefits to a migrant does no offence to the expression 'in relation to the State' in Articles 341/342 of the Constitution or Clauses 2 of Scheduled Caste/Scheduled Tribes Orders, 1950, since entitlement of such a person would have to be still decided with reference to the origin of such migrant and identification of migrant's caste as backward in relation to such State.
(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 date of migration but date of inclusion of caste or tribe in the schedule.
(v) Reorganization of States did not proceed on the basis of castes or tribes but on linguistic basis and therefore, localities of persons entitled to the benefit of reservation got divided in different states.
(vi) If upon removal of area restrictions, in the entire area of the State as originally existed on the date of notification of Constitution ::: Downloaded on - 09/06/2013 15:39:54 ::: 29 (Scheduled Castes/Scheduled Tribes) Orders, the persons concerned could avail of the benefits of reservation, there is no reason why they should be denied such benefits upon reorganization of the states, in which a part of their locality was included.
(vii) The ratio of the decision in Marri Chandra is only that a migrant would be disentitled for reservation in the state of migration if his caste is not notified as scheduled caste or scheduled tribe in the state of migration. (Since in Marri Chandra's case the caste "Gouda"
was notified in the State of Andhra Pradesh but not in Maharashtra). It would be impermissible to conclude that even though his caste is so notified in the State of migration, he would be disentitled to benefits, since such conclusion would frustrate the very object of providing benefits enumerated at (ii) above.
(viii) In Action Committee while explaining and following the ratio in Marri Chandra's case, the Apex Court must be held to have merely sought to deny benefits to migrants belonging to a caste of same nomenclature, by consciously choosing the expression "same nomenclature" and avoiding the use of words "same caste". This implies that if persons belong to the 'same caste' they were not to be denied the benefits.
(ix) Sections 26 and 27 of the Bombay State Reorganization Act merely amend the schedules as a corollary to creation of State of Maharashtra and have no bearing on the question of entitlement of the migrants to reservation with reference to date on which the state was created.
(x) As held by the Apex Court in Sudhakar v. State, if a migrant belonged to a community which was recognised as scheduled caste or scheduled tribe in any locality which has been divided upon reorganization of states and his caste is recognised as Scheduled Caste/Scheduled Tribe even in such newly formed states, the migrant would be entitled to benefit of reservation even in the State, in which part of the locality other than his place of origin has gone."
23. We propose to deal with each of the conclusions.
::: Downloaded on - 09/06/2013 15:39:55 ::: 30(i) Insofar as conclusion (i) is concerned, really speaking, it is in terms of the law declared in Marri Chandrashekhar Rao (supra).
(ii) Insofar as conclusion (ii) is concerned, the same runs counter to the law declared by the Constitution Benches in Marri Chandrashekhar Rao and Action Committee. To that extent, the conclusion that a crucial test would be whether the person concerned suffers the same degree of disadvantage vis-a-vis other segments, as other local people of his caste suffer or whether as a migrant, he is placed on a higher pedestal, in our opinion, is contrary to the ratio in Marri Chandrashekhar Rao and Action Committee (supra). Once the Presidential Notification is issued that is recognition of their disadvantage. Courts cannot examine that issue.
Further, any executive action or legislative enactment which interferes,disturbs, rearranges, regroups or reclassifies the various castes found in the Presidential List will be violative of scheme of the Constitution and will be violative of Art. 341 of the Constitution. (See E.V.Chinnaiah v/s. State of A.P. (2005) 1 SCC 394). We may also gainfully refer to the following observations in State of Maharashtra v/s. Milind and others (2001) 1 SCC 4:-
::: Downloaded on - 09/06/2013 15:39:55 ::: 31"15... Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-
caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard. The President had the benefit of consulting the States through Governors of States which had the means and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it is Parliament that is in a better position to know having the means and machinery unlike courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically included, may lead to problems..."
(iii) Conclusion (iii) , in our opinion, also runs directly counter to ::: Downloaded on - 09/06/2013 15:39:55 ::: 32 the interpretation given to Articles 341 and 342 in Marri Chandrashekhar Rao (supra) and Action Committee (supra). In Marri Chandrashekhar, the Supreme Court has noted that it is for the Parliament/Legislature to extend benefits to migrants. As the law now stands in the State of Maharashtra, there is no such legislation and, therefore, the conclusion runs directly counter to the law in Marri Chandrashekher and Action Committee.
(iv) Insofar as conclusion (iv) is concerned, we find in case of S.T. A person is treated as migrant if he was not ordinarily resident in the geographical area now forming part of the State of Maharashtra as on 6th September, 1950. In case of a Scheduled Caste, it will be in terms of the letter dated February 12,1981 which has fixed the date as 10.3.1950 which has been noted in Marri Chandrashekhar Rao and Action Committee.
The date when a person can be treated as a migrant or non-migrant is the date as aforesaid.
(v) Insofar as conclusion (v) is concerned, in our opinion,it has hardly any relevance for the purpose of answering the controversy. The old concept where States were formed based on linguistic basis no longer ::: Downloaded on - 09/06/2013 15:39:55 ::: 33 subsists after the formation of the States of Uttarakhand, Chhattisgarh and Jharkhand as those States have the same language as of the States from which they have been excluded, Uttar Pradesh, Madhya Pradesh or Bihar.
(vi) Insofar as conclusion (vi) is concerned, the conclusion again runs directly counter to the ratio in Marri Chandra Shekhar Rao and Action Committee (supra). Removal of area restriction within a State by a notification does not mean that the Schedule to the Constitution stands amended. In our opinion, such a conclusion is not even borne out by the observations in Kumbhare's case (supra).
(vii) Conclusion (vii) runs counter to the Judgment in Action Committee where the question posed itself was a case where the caste/tribe happens to be notified both in the State of origin and the State of migration.
(viii) Insofar as conclusion (viii) is concerned, firstly, a judgment of a Court cannot be read as a legislation. What the Courts must consider is the ratio of the judgment and not the flourish of the language. The expression "same nomenclature" means the same name. The same name would therefore mean the name of the same tribe or caste. Various ::: Downloaded on - 09/06/2013 15:39:55 ::: 34 notifications issued are in respect of castes and/or tribes. No inference nor implication can be drawn because in Mari Chandrashekhar's case the Court used the expression "same nomenclature". In our opinion, the said conclusion also runs counter in Marri Chandra Shekhar and Action Committee as also in Subhash Chandra.
(ix) Insofar as conclusion (ix) is concerned, reference to Sections 26 and 27 of the Bombay State Reorganization Act as considered in Bankimchandra's case was to identify where the person was `ordinarily resident' for the purpose of benefit. It is true that it has no bearing on the question of entitlement of the migrants to reservation. However, it is important to note, that to claim benefits of reservation under the Presidential Notification, the person claiming such benefit must have ordinarily resided as of the date of the Presidential Notification in the area now constituting the State of Maharashtra. This has been explained in Bankimchandra in paragraph 6-7 which we have referred to earlier.
(x) Insofar as conclusion (x) is concerned, having explained the Judgment in Sudhakar's case which is the Judgment of the Bench of three Judges and the two Constitution Bench Judgments in Marri Chandrashekhar ::: Downloaded on - 09/06/2013 15:39:55 ::: 35 and Action Committee, the scheduled castes and scheduled tribes from any locality which has been divided upon Reorganization of States and such caste or tribe is also recognized as Scheduled Caste and Scheduled Tribe in the newly formed State, such migrant would not be entitled to benefit of reservation in the State of migration but would be entitled only of benefit in the State of origin.
24. Having so explained, the conclusions, in our view, we disapprove and overrule the view taken in Hitesh D.Murkute, Santosh Padoti, Sheetal Dupare and other judgments not brought before us but which may have taken the same view.
25. While concluding, we may point out the maintenance of judicial discipline is a part of our judicial process. It is open to a co-
ordinate Bench if the earlier judgment is per incuriam to take a different view. But in a case where a Court seeks not to follow the judgment either it must give reasons as to why the judgment is per incuriam and/or refer the matter for consideration by a larger Bench. When a decision can be said to be per incuriam, we may refer to the Judgment in Subhash Chandra (supra) though made in the context of decisions of the Final Appellate ::: Downloaded on - 09/06/2013 15:39:55 ::: 36 Court :-
"In an article "Final Appellate Courts Overruling Their Own "Wrong" Precedents:
The Ongoing Search For Principle" by B.V.Harris published in (2002) 112 LQR 408-427, it is stated:
"A decision may be held to be per incuriam where relevant statutory provisions, or binding case law authority, have been overlooked or misinterpreted in arriving at the holding in the precedent..
Considerations Relevant To Deciding whether to Defer or to Overrule Precedent:
The first consideration for a final appellate court called upon, in the exercise of its discretion, to overrule an allegedly wrong precedent of its own, will be whether the precedent can be distinguished on the facts, including changing social and other contexts, or distinguished on the law. If the precedent can be distinguished, overruling will not be necessary. The subsequent appellate court will rather be free to choose not to follow the precedent which can be distinguished.
Second, the precedent should be considered closely to determine whether the decision was reached per incuriam. A per incuriam precedent may be overruled.
Third, the workability of the precedent should be assessed. Evidence of lack of workability may justify overruling.::: Downloaded on - 09/06/2013 15:39:55 ::: 37
The fourth consideration will be whether any reasons have been advanced in the appeal which were not considered in deciding the precedent. This category could arguably be included in many circumstances, either in the first category as a form of distinguishing, or in the second category if the omission is sufficiently serious to cause the precedent to be per incuriam.
All of the first four considerations have traditionally been accepted as exempting subsequent appellate courts from the obligation to follow precedent."
On the issue of judicial discipline, the Supreme Court observed in Official Liquidator vs. Dayanand & Ors. (2008) 10 SCC 1:-
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary ::: Downloaded on - 09/06/2013 15:39:55 ::: 38 will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient function of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law."
26. Having said so, we may now answer the Reference. In case of ::: Downloaded on - 09/06/2013 15:39:55 ::: 39 a migrant belonging to a Scheduled Caste, not ordinarily resident as on 10.3.1950 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.
27. In conclusion, we thank the learned Advocate General as also all the Counsel, who have assisted us at the hearing of this Reference.
28. The Registry to place the Petitions before the appropriate Benches for decision on merits.
(FERDINO I.REBELLO,J.) (DR.D.Y.CHANDRACHUD,J.) (J.H.BHATIA,J.) ::: Downloaded on - 09/06/2013 15:39:55 :::