: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6833 OF 2009 Kumari Reena Shrinarayan Meena, minor through her father. ... Petitioner Vs 1. Administrator of Daman & Diu & ors. ... Respondents Mr. P.P. Chavan i/b Smt. Kavita Kannan for the petitioner. Mr. Girish Kulkarni with Mr. S.S. Deshmukh for the respondents. Mr. A.Y. Sakhare, senior counsel i/b M/s.YKS Legal for Intervenor. CORAM: S.B. MHASE & R.M. SAVANT, JJ. DATED : 11TH AUGUST, 2009. P.C.: 1. This is a Petition filed on behalf of Kumari Reena Shrinarayan Meena, minor, through her father Shri Shrinarayan under Article 226 of the Constitution of India to quash and set aside the impugned order of respondent No.3 dated 15th July, 2009, and to further direct the said respondent No.3 to issue a Caste Certificate in accordance with law. He has : 2 : further prayed that a Caste Certificate be issued provisionally subject to verification by the prescribed authority to consider the case of the petitioner in the Scheduled Tribe quota for admission to MBBS/BDS course, and stay the counselling in respect of ST seats for medical admission under the quota of Union Territory of Daman & Diu. 2. Admittedly, the petitioner is from the State of Rajasthan and the father of the petitioner is in the employment of the Central Government i.e. in the Central Excise Department. The Petitioner belongs to “Meena” community which is a Scheduled Tribe community in the State of Rajasthan. It is also an admitted position that the said community is not considered to be a Scheduled Tribe in the Presidential Order applicable to the Union Territory of Daman & Diu. The petitioner’s father is posted at Daman for the last three years. The petitioner applied to the Mamlatdar of Daman for issuance of the Caste Certificate certifying that the petitioner belongs to Meena Community (Scheduled Tribe). The said application was rejected by the Mamlatdar, Daman, by order dated 15th July, 2009 (reasons given for rejection of the same will be considered in the later part of this order). : 3 : 3. The petitioner Kumari Reena had appeared in XIIth Std. Examination and she passed the said examination and has been held eligible for being considered for admission to the medical courses viz. MBBS or BDS. It is the petitioner’s claim that she stands first in the list of Scheduled Tribe candidates as per merit. However, since the Certificate of Scheduled Tribe is not issued to her and the application to that effect has been rejected, she will not be considered for admission to the reserved post of Scheduled Tribe and, therefore, the petitioner has filed the present Writ Petition. It is an admitted position on record that the father of the petitioner, though serving as a Central Government employee in the Union Territory of Daman & Diu, yet he was appointed and recruited not as an employee of the Union Territory of Daman & Diu, but has been transferred by the Central Government in the Excise Department of the Central Government located at Daman & Diu. That is the reason why the petitioner’s father is residing for about three to four years in Daman. 3. The learned counsel for the petitioner submitted that the decision of not considering the application of the petitioner for issuance of a Caste Certificate and thereby not considering the petitioner as a candidate of Scheduled Tribe for getting admission to the reserved seat of Scheduled : 4 : Tribe is not in accordance with law. The learned counsel has relied upon the judgment of the Apex Court in the case of Pushpa & Ors. Vs. Sivachanmugavelu & Ors., reported in (2005) 3 SCC 1. Heavy reliance has been placed by the learned counsel on paragraph 21 of the said judgment. The reason for rejection of the application of the petitioner reflected from the order dated 15th July, 2009, of the Mamlatdar, Daman, is as follows: “In the matter of issuance of Caste Certificate to a Tribal there is the constitution (Goa, Daman and Diu) Schedule Tribe order 1968 wherein the Caste falling within the said order is clearly shown. I have gone through the said order and Community Meena is not shown as a Scheduled Tribal, in the said order. I derive my authority to issue a caste certificate for the Tribal from the above referred order and I can not travel beyond it and apply similar order of other State. This office also has not received tribes order of other State or any instruction from the Government in this regard authorizing this office to certify and issue caste certificate of the other caste which may be shown as a Tribal caste in the similar order of other State.” 4. The order produced above is a self-speaking order and is covered by the judgment in the case of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College, reported in (1990) 3 SCC 130 and the judgment in the case of Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India, : 5 : reported in (1994) 5 SCC 244. We, therefore, do not find any reason to entertain this Petition as against this order. 5. So far as reliance on paragraph 21 of the judgment of the Apex Court is concerned, the said paragraph reads thus: “21. Clauses (1) and (2) of Articles 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to (5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of “backward classes of citizens” which in its opinion are not adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the backward classes to claim reservation. Article 16(4) is not controlled by a Presidential Order issued under Article 34(1) or Article 342(1) of the Constitution in the sense that reservation in the matter of appointment to the posts may be made in a State or Union Territory only for such Scheduled Castes and Scheduled Tribes which are mentioned in the Schedule appended to the Presidential Order for that particular State or Union Territory. This article does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order issued for a particular State alone would be recognised as backward classes of citizens and none else. If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union Territory then such a : 6 : provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order having adopted a policy of the Central Government whereunder all Scheduled Castes and Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law.” 6. What we find from the facts of the above case is that the Directorate of Education, Government of Pondicherry had issued an advertisement for fillinhg up 350 General Central Service Group “C” posts of Selection Grade Teachers wherein 56 posts were reserved for Scheduled Caste candidates. In response to the notification, the employment exchange sponsored the names of candidates in respect of various categories including SC candidates as requested by the Department. Besides, as envisaged and in conformity with the National Employment Service Manual, the employment exchange also sponsored some names of SC candidates from neighbouring employment exchanges as sufficient number of SC candidates were not available in Yanam and Mahe region of the Union Territory of Pondicherry. The Employment Exchange of Badagara (Kerala) sponsored 4 candidates for Mahe, the Employment Exchange, Yanam sponsored 15 : 7 : candidates and Employment Exchange, Vishakhapatnam (A.P.) sponsored 139 candidates for Yanam and under these circumstances, the reserved candidates from other States were selected which was challenged by filing a Petition before the Central Administrative Tribunal. Taking into consideration this aspect, the above paragraph 21 will have to be read. The thrust of the above paragraph 21 is Article 16(4) of the Constitution of India which is an enabling provision for making reservation in employment. The Apex Court has also considered the policy of the Union Territory. The following extract from the said paragraph is important : “If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order having adopted a policy of the Central Government whereunder all Scheduled Castes and Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal : 8 : infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law.” This was a case of employment and not admission as is the case before us. No Government Resolution or the directions of the Union Territory have been pointed out to us by which the benefit of reservation has been extended to candidates from other States by the Union Territory of Daman & Diu. An attempt has been made to rely upon the judgment of the Delhi High Court in the matter of Union of India v. Dr. B.R. Ambedkar Memorial Fund reported in 127 (2006) DLT 557 wherein the question of admission was considered against the reserved seat. In view of the judgment of the Apex Court in Pushpa’s case (supra) we do not deem it appropriate to accept the Delhi High Court judgment basically because the benefit of the reservation could have been extended to the petitioner had the petitioner’s father been in the employment of the Union Territory of Daman & Diu in view of the policy and provisions of law as have been considered by the Apex Court in the case of Pushpa & Ors. (supra). Since the petitioner’s father is not in the employment of the Union Territory of Daman & Diu, therefore the Petitioner cannot be considering for extending the benefit of reservation to the candidates from other States which was considered in the said judgment of Pushpa & Ors. (supra). We also do not find any force in the contention that in view of paragraph 21, the : 9 : petitioner is entitled to admission to the reserved post of Scheduled Tribe candidate. It is equally possible in the given facts that the petitioner’s father can be transferred from the Union Territory to any State and vice-versa. Therefore, unless he happens to be in the employment of the Union Territory of Daman & Diu, wherein a relaxation was granted by the said Government in respect of employment as was the case in the matter of Pushpa & Ors. (supra), the Government of the Union Territory is not expected to consider the petitioner for admission to the Scheduled Tribe quota. This aspect has not been considered by the Delhi High Court while delivering the judgment referred to above in the case of Union of India v. Dr. B.R. Ambedkar Memorial Fund and which has been relied upon by the petitioner. 7. We, therefore, find no merit in the above Writ Petition which is, accordingly, rejected. (R.M. SAVANT, J.) (S.B. MHASE, J.)