HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7282/2019 [ENTITY] W/o Shri Pradeep Kumar, Aged About 28 Years, D/o Shri Nihal Singh, By Caste Nai, Resident Of Village Thalarka, Tehsil Nohar, District Hanumangarh. Petitioner Versus 1. [ENTITY], Through District Collector, Hanumangarh. 2. [ENTITY]. 3. [ENTITY]. Respondents For Petitioner(s) : Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY], AAG HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 28/05/2019
1. Learned counsel for the parties agree that the matter is squarely covered by the judgment rendered by this Court in the matter of [PRECEDENT]. (S.B. Civil Writ Petition No.55[SECTION]/2019) decided on 22.04.2019. The order dated 22.04.2019 reads as under :-
"1. The petitioner has preferred the present writ petition claiming the following relief :-
"It is, therefore, prayed that this writ petition may kindly be allowed and :-
(i) by an appropriate writ, order or direction, the verbal refusal of the respondent Tehsildar [ENTITY], District Hanumangarh from issuing the OBC caste certificate may kindly be declared illegal and arbitrary ;
(2 of 11) [CASE NUMBER]]
(ii) by an appropriate writ, order or direction, the respondent Tehsildar [ENTITY], District Hanumangarh may kindly be directed to issue OBC caste certificate to the petitioner forthwith;"
2.1 The petitioner belongs to the State of Haryana and she falls in O.B.C. category. Her husband belongs to OBC category of State of Rajasthan. After marriage, the petitioner claims that as she undisputedly belongs to OBC category in State of Haryana and her husband also belongs to OBC category in State of Rajasthan, therefore, she deserves to be given OBC reservation in Rajasthan. 2.2 The broad question of law under consideration is as to whether any reserved category candidate of one State would be entitled for reservation in the same reserved category in another State on account of migration upon marriage, adoption, conversion etc. 3.1 Learned AAG while addressing the broad legal proposition submits that the Hon'ble Apex Court has repeatedly reiterated the law that a reserved category candidate would not be entitled for the same reservation once he/she migrates from his original State on count of marriage, adoption or conversion. Learned AAG has relied upon the judgment of Hon'ble Supreme Court in the case of [ENTITY]. vs. Dean, Seth G.S. Medical College and others, reported in (1990) 3 SCC 130, the relevant para 10 whereof reads as below :-
"10. It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere. But if sufficiently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however, are problems of social adjustment i.e. how far protection has to be given to a certain segment of socially disadvantaged community and (3 of 11) [CASE NUMBER]] for how long to become equal with others is a matter of delicate social adjustment. These must be so balanced in the mosaic of the country's integrity that no section or community should cause detriment or discontentment to other community or part of community or section. 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 inabilities in those areas. 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 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 approach in mind, then the determination of the controversy in the instant case does not become difficult. For the purpose of understanding the problem, it may be worthwhile to refer to the Report of the Joint Committee of the Parliament on the [ACT]. It may also be worthwhile to refer to the proceedings of the Con- stituent Assembly on the 17th September, 1949 dealing with [SECTION] and [SECTION], which later on became [SECTION] and [SECTION] respectively. Dr. [ENTITY] moving the Resolution observed as follows:
"That after [SECTION], the following articles be inserted:
300A.(1) The President may, after consultation with the Governor or Ruler of a State, by public notification specify the castes, races or tribes or parts of or groups within castes races or tribes, which shall for purposes of this [ACT] be deemed to be Scheduled Castes in relation to the State.
(4 of 11) [CASE NUMBER]] (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
300B.(1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this [ACT] be deemed to be scheduled tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of scheduled tribes specified in a notification issued by the President under clause (1) of this article any Tribe or Tribal community or part of or group within any Tribe or Tribal community but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." The object of these two articles, as I stated, was to eliminate the necessity of burdening the [ACT] with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the [ACT]. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President."
3.2 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of Action Committee on issue of Caste Certificate to Scheduled (5 of 11) [CASE NUMBER]] Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and another, reported in [PRECEDENT], the relevant paras [SECTION] & 17 whereof read as below :-
"[SECTION]. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature 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 fights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this [ACT]". This is an aspect which has to be kept in mind and which was very much in the minds of the [ACT]-makers as is evident from the choice of language of [SECTION] and [SECTION] of the [ACT]. That is why in answer to a question by Mr [ENTITY], Dr [ENTITY] answered as under:
"He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to (6 of 11) [CASE NUMBER]] answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this [ACT]. But so far as the present [ACT] stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them
Relying on this statement the [ACT] Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin.
17. Lastly the [ACT] Bench referred to the cleavage in the views of different High Courts on the interpretation of [SECTION] and [SECTION] of the [ACT] and the consequential orders passed by the Government of India and the State Governments. It referred to the two decisions of the Gujarat High Court as well as the decision of the Karnataka High Court which place the interpretation canvassed before us by Mr [ENTITY]. The other side referred to the decisions of the Orissa High Court in [PRECEDENT], the decision of the Full Bench of the Bombay High Court in [PRECEDENT]" and the decision of the Punjab & Haryana High Court in [PRECEDENT] which take the contrary view canvassed before us by the respondents. All these decisions were considered by the [ACT] Bench which agreed with the latter view. It upheld the view expressed in the communication dated 22- 2- 1985 and negatived the challenge of the petitioner that the said view was ultra vires [SECTION], [SECTION], [SECTION] or [SECTION]. It, however, observed that in the facts and circumstances of the case and having regard to the fact that the petitioner student's career was involved it directed the authorities to consider whether the petitioner was a 'Goudi' and if yes, the (7 of 11) [CASE NUMBER]] institution may consider if he can be allowed to complete his studies in the institution. However, on the interpretation of the relevant provisions of the [ACT] this Court was clear in its view that legally speaking he was not entitled to admission in the Scheduled Tribe quota."
3.3 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of [PRECEDENT], the relevant para 34 whereof reads as below :-
"34. In [PRECEDENT] , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under [SECTION], [SECTION] and [SECTION] to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under [SECTION] and [SECTION], or in appointment to an office or a post under the State under [SECTION], when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have had same the handicaps, and must have been subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under [SECTION] and [SECTION], as the case may be. Acquisition of the Status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the [ACT], and (8 of 11) [CASE NUMBER]] would frustrate the benign constitutional policy under [SECTION] and [SECTION] of the [ACT]."
3.4 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of [PRECEDENT]. ([CASE NUMBER]), which reads as below :-
1. We have heard the learned counsels for the parties and perused the relevant material.
2. The appellant who belongs to Valmiki caste (Scheduled Caste) of the State of Punjab married a person belonging to the Valmiki caste of Uttarakhand and migrated to that State.
In the State of Uttarakhand under the Presidential Order 'Valmiki' is also recognized as a notified Scheduled Caste. The State of Uttarakhand issued a certificate to the appellant.
3. The appellant contended before the High Court that she was a Scheduled Caste of the State of Uttarakhand. The High Court having rejected the claim, the appellant is in appeal before us.
4. Two [ACT] Bench judgments of this Court in [ENTITY] vs. Dean, Seth G.S. Medical College & Ors.1 and Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the [PRECEDENT] have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the [ACT] Bench Judgments in [ENTITY] (supra) and Action Committee (supra).
5. We, therefore, find no error in the order of the High Court to justify any interference. The appeal is accordingly dismissed."
3.5 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of [PRECEDENT], the relevant paras [SECTION]6, [SECTION]7 & [SECTION]8 whereof reads as below :-
"[SECTION]6. Insofar as the States, I agree with the majority view that a person who is recognised as a member of Scheduled Castes/Scheduled Tribes in his original State, will be entitled to all the benefits of reservation under the [ACT] in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory.
[SECTION]7. [ENTITY] and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the [ACT]al scheme and the law laid down in [ENTITY] and Action Committee.
[SECTION]8. Since there is centralised recruitment upto Group 'B' (Gazetted) services conducted by UPSC for the Central Civil Services posts in the States/Union Territories of India, there has to be necessarily PAN India reservation for Scheduled Castes/Scheduled Tribes for those recruitment conducted by UPSC. Sofaras Group 'B' and Group 'C' posts falling under services of Union Territories including Union Territory of Delhi for which recruitment is conducted by the respective Union Territories, benefit of reservation in employment (Article [SECTION](4 is to be extended only to those Scheduled Castes/Scheduled Tribes specified in the Presidential Order of the respective Union Territories. Insofar (10 of 11) [CASE NUMBER]] as the posts recruited by the Staff Selection Board of the respective Union Territories including the Union Territory of Delhi, there cannot be PAN India reservation for Group 'B', Group 'C' and Group 'D' posts falling under the services of various Union Territories and such PAN India reservation would be against the constitutional scheme and [ENTITY] and Action Committee."
3.6 Learned AAG has further relied upon the judgment of this Court in the case of [ENTITY] (Dr.) vs. State and Anr, reported in RLW 2010 (2) Raj. [SECTION]54., wherein this Court has dismissed the writ petition of the petitioner therein, relying upon the aforesaid precedent law in the case of [ENTITY] (supra). 3.7 Learned AAG thus submits that looking into the jurisprudence laid down by the Hon'ble Supreme Court, no room is left for the petitioner for any type of consideration on account of having the status of backward class as admittedly, she has migrated from another State.
4. Learned counsel for the petitioner is not in a position to refute the aforesaid precedent law which leaves no room for any further adjudication by this Court in the broader legal proposition dealing with status of reservation upon migration from one State to another.
5. After hearing the learned counsel for the parties and after perusing the material available on record particularly, the precedent law, this Court has no option left but to hold that the benefit of reservation to the migrants from other States cannot be given as it is barred by the binding precedent law cited herein.
6. In light of the aforementioned precedent law, the present writ petition is dismissed. However, as has already been laid down by this Court in the case of [ENTITY] (Dr.) (supra), the petitioner, if so advised, may approach the National Commission for Backward Classes agitating all such (11 of 11) [CASE NUMBER]] arguments which she has raised before this Court. It shall be then for the National Commission to examine advisability of making appropriate recommendation to the Union Government and/or State Governments concerned, so as to suggest the mechanism to be adopted in such cases where the spread of any castes, races or tribes is found across the line of territorial border of two or more States and they are found to share common ancestors having inter-se marital relationship, if that is possible without compromising the safeguards provided for the original natives of a given State, upon mutual understanding that may be arrived at between such contiguous states.
7. [CASE NUMBER] also stands dismissed accordingly."
2. In view of the above, the present writ petition is dismissed in terms of the order passed by this Court in [PRECEDENT]. (S.B. Civil Writ Petition No.55[SECTION]/2019) decided on 22.04.2019. Stay petition NO.7[SECTION]0/2019 also stands dismissed accordingly.
(DR. [ENTITY] 248-Sudheer/-
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