IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1762 of 2010 (M/S) Vishwajeet Majhi S/o Raghunath Prasad Majhi … Petitioner. Versus State of Uttarakhand and another ……… Respondents. Mr. Lalit Tewari, learned counsel for the petitioner. Mr. P.C. Bisht, learned Brief Holder for the respondents. (Hon’ble B.S. Verma, J.) Heard Mr. Lalit Tewari, Advocate for the petitioner and Mr. P.C. Bisht, learned Brief Holder appearing on behalf of the respondents. By means of this petition the petitioner has sought the following relief- 1- To issue a writ in the nature of certiorari quashing the order dated 30-09-2010, passed by respondent No.2. 2- To issue a writ in the nature of mandamus commanding the respondent no.2 to issue cast certificate in favour of the petitioner in accordance with G.O. No. 1540/Karmik/2/2002 dated 29th March 2003, as the petitioner is the eligible for the same. According to the petitioner he is original and permanent resident of State of Uttarakhand and is a member of Scheduled Caste. The petitioner’s grand father got job in BHEL Haridwar in the year 1962 and he was regularised there on 27.5.1970. Petitioner’s father also took education from Jwalapur Inter College Haridwar upto class 9th and thereafter appointed in Home Guards in 1976 at Haridwar . It is further case of the petitioner that he was born on 14.6.1981 at Haridwar and has completed his education upto Intermediate from Haridwar. Thereafter he qualified for C.P.M.T. and selected for B.A.M.S. course and obtained the B.A.M.S. from Govt. S.R.M. Ayurvedic College Bareilly. In the said C.P.M.T. Examination the petitioner was treated as Scheduled Caste candidate of District Haridwar and thereafter after creation of State of Uttarakhand the petitioner has automatically become domicile and Scheduled Caste of 2 Uttarakhand. After completing B.A.M.S. degree the petitioner applied for registration with Indian Medical Council Uttarakhand and a certificate to this effect was issued in favour of petition on 18.4.2007. If a candidate having medical degree has been registered with Indian Medical Council in one State has to take N.O.C. from the State where he is already registered. It is also alleged by the petitioner that earlier he was issued a caste certificate by Tehsildar Haridwar on 29.4.2002 in which petitioner’s caste is shown as “Dusadh” and the said caste is notified in Uttarakhand as Scheduled Caste. The Tehsildar Haridwar also issued to him a permanent residence certificate. Now Public Service Commission Uttarakhand has published vacancies for Medical Officer (Ayurvedic) and petitioner applied for caste certificate in the format as prescribed in G.O. No. 1540/Karmik/2/2002 dated 23.3.2003,but the Tehsildar did not issue caste certificate in favour of the petitioner saying that the petitioner has not annexed domicile with his application. The petitioner approached this Court by filing W.P. No. 164/2010(M/S) in which this Court has directed the Tehsildar to decide the application of the petitioner within one week. Thereafter the Tehsildar has rejected the application of the petitioner vide impugned order dated 30-9-2010. Hence this petition. In the counter affidavit filed by State/ respondent it has been alleged that the petitioner is a permanent resident of Bihar State and he is not permanent domicile of Uttarakhand, therefore, no Scheduled Caste Certificate can be issued to him to take benefit of reservation in Uttarakhand. I have perused the impugned order passed by Tehsildar while rejecting the application of the petitioner for issue of Caste Certificate. The petitioner has applied for issue of Caste Certificate at the residence of Rashmi Udhyog F-68, Industrial Area, Bahadarabad, Pargana Jwalapur, Tehsil and District Haridwar. The Tehsildar got inquired the genuineness of the residence of the petitioner by Lekhpal/Revenue Inspector. The Lekhpal submitted his report dated 20-09-2010 in which he has reported that the given address of the petitioner could not be identified and the petitioner has told him that he is resident of Bihar State. The Tehsildar also stated that the 3 petitioner has not enclosed the domicile certificate of Uttarakhand along with his application for issue of Caste Certificate. The petitioner enclosed the certificate of service of his grand father Sajawal Prasad in BHEL during the period 27.5.1970 to 7.8.1999 and his transfer certificate dated 31.5.78 issued by Inter College Jwalapur, in which the residence of petitioner has been noted Labour Colony BHEL Haridwar, but the said Colony was entered in the category of unauthorised colony. The Tehsildar on the basis of above documents has drawn the inference that although petitioner was residing in Uttarakhand for about 40 years, but he is not a permanent resident of Uttarakhand. Learned counsel appearing on behalf of the petitioner has submitted that the Division Bench of this Court in the similar matter in Writ Petition No. 316 of 2008 (S/B), Dharmendra Prasad Vs. State of Uttarakhand and two others, has allowed the petition and directed the authorities concerned to issue caste certificate to the petitioner by treating him bonafide resident of State of Uttarakhand. Learned Standing Counsel appearing on behalf of the State has contended that SLP pertaining to the case of Dharmendra Prasad (supra) is pending before the Apex Court. He has contended that the petitioner is permanent domicile of State of Bihar and in the event of his migrating to State of Uttarakhand he cannot get benefit given to the members of Schedule Caste of Uttarakhand. In support of his contention he has cited before the cases of Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and others, reported in (1990) 3 Supreme Court Cases 130, and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another Vs. Union of India, reported in (1994) 5 Supreme Court Cases 24. He, therefore, urged that the verdict of Constitutional Bench of Apex Court in the case of Action (supra) will prevail over the judgment of Division Bench of this Court rendered in Dharmendra Prasad. I have gone through the above cited judgments. 4 In the Marri Chandra Shekhar Rao case, the Hon’ble Apex Court has held 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 because of transfer or movement of their father or guardian’s business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they 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 another 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 State or areas, any facility or protection for continuance of study or admission can be given to one who has or 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 legislature or the Parliament may appropriately take into consideration. “24. Having so held, now the question is, as to what is to happen to the petitioner in this case. As we have held, the petitioner is not entitled to be admitted to the Medical College on the basis that he belongs to Scheduled Tribe in his original State. The petitioner has, however, been admitted. He has progressed in his studies. But he had given an undertaking that he will not insist on the basis of the admission. If we allow him to continue with his studies in Maharashtra’s college where he has been admitted on the undertaking given after he has not succeeded in this application, it would be a bad precedent. We must, however, do justice. The boy’s educational prospects should not be jeopardised since he has progressed to a certain extent and disqualifying him at this stage or this year on the ground that he is not entitled to the protection of Scheduled Caste or Scheduled Tribe, would not confer any commensurate benefit to Scheduled Castes or 5 Scheduled Tribes in Maharashtra or for that matter on anybody else. It is, therefore, desirable that the question whether he is genuinely belonging to Gouda community and whether this community is a Scheduled Caste or Scheduled Tribe, should be first properly and appropriately determined. As mentioned hereinbefore, we have not examined this question. After determining that whether after making provisions for the Scheduled Castes and Scheduled Tribes of Maharashtra, if any facility of admission or continuance of study can be given in the Medical College in Maharashtra to the petitioner herein, the authorities in charge of the institution should consider the same and if on that considering they find it justified in allowing the petitioner to continue in his studies, they may do so. The authorities should consider the same and take action accordingly, as expeditiously as possible. In considering the question of the petitioner continuing his medical educational, the appropriate authorities should bear in mind the justice of the situation. We, therefore, leave it to the authorities to take appropriate action about the continuance or discontinuance of the petitioner in his studies on the basis of the aforesaid consideration. We order accordingly. We do so only in the background of the peculiar facts and circumstances of this case, and the aforesaid observations should not be treated as a precedent for other situations. “25. We, therefore, direct that the petitioner is not entitled to be admitted to the Medical College on the basis that he belonged to the Scheduled Tribes in Andhra Pradesh but his continuance in the college will dpend upon the consideration indicated hereinbefore. The writ petition is thus disposed of. There will be no order as to costs.” The Hon’ble Apex Court in the above cited ‘Action Committee’ case has also considered the validity of the preposition of law laid down by Apex Court in the case of Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and others, reported in (1990) 3 Supreme Court Cases 130, and upheld the conclusion drawn in Mari Chandra Shekhar Rao Case. In para –16, of ‘Action Committee’ case, the Hon’ble Apex Court has recorded the findings as below- “16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/ Schedule Tribes or backward classes in a given State would depend on the nature and extent of 6 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 tow 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 as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another Sate the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State ‘for the purposes of this Constitution’. This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution- makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr. Jaipal Singh, Dr. Ambedkar answered as under: ‘He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area?. It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably 7 impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them..’ Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin.” The facts of the case in hand are similar to the facts of above cited case. The petitioner is permanent resident of State of Bihar, and merely because Scheduled Caste specified in State of Bihar, is also bearing the same nomenclature in State of Uttarakhand where the petitioner has migrated, would not entitle the petitioner to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the State of Uttarakhand. So far as the view taken by Division Bench of this Court in the case of Dharmendra Prasad is concerned, the said judgment is per incuriam because the Constitution Bench Judgments (supra) have not been considered while deciding the Dharmendra Prasad Case. Therefore, the law laid down by Hon’ble Apex Court in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another Vs. Union of India (supra) is fully applicable in the present case and the petitioner is not entitled to get the rights, privileges and benefits admissible to a member of Scheduled Caste of the State of Uttarakhand. Therefore, relying on the law laid down by Hon’ble Apex Court in Action Committee’s case (supra), the writ petition lacks merit and is liable to be dismissed. The writ petition is dismissed. Dated: 28-10-2010 (B.S. Verma, J.) ISB