IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.08.2009 CORAM THE HON'BLE MR. JUSTICE M.M.SUNDRESH W.P.No.3072 of 2008 and M.P.No.1 of 2008 Khrienuo Angami .. Petitioner Vs 1.The Government of Tamil Nadu, rep. by its Secretary to Government, Education Department, Fort St. George, Chennai-600 009, 2.Tamil Nadu Teachers Recruitment Board, rep. by its Chairman, IV Floor, EVK Sampath Maligai, College Road, Chennai-600 008. .. Respondents Petition filed under Article 226 of the Constitution of India for issuance of a writ of Certiorarified Mandamus calling for the records of the respondents, especially the second respondent relating to his proceedings made in R.C.No.1030/A6/2006, dated 18.12.2007 and quash the same as null and void and invalid and consequently to direct the second respondent to appoint the petitioner as 'Lecturer' in the Department of Botony on the strength of her selection under Scheduled Tribe quota in any one of the available vacancies with all attendant benefits. For Petitioner : Mr.A.Amal Raj, For Respondents : Mrs.Lita Srinivasan (G.A). O R D E R The petitioner herein originally hails from the State of Nagaland. She has undergone her school studies upto the 10th standard in the State of Nagaland. Thereafter, she joined the school in the state of Tamil Nadu and completed her school and college education. The petitioner has also obtained M.Sc., Decree in Botony. Thereafter, the petitioner has finished M.Phil., in the University of https://hcservices.ecourts.gov.in/hcservices/ Madras. After finishing the same, she wrote an examination for the post of lecturer in the Department of Botony conducted by the second respondent herein namely Tamilnadu Teachers Recruitment Board. However a letter was sent by the second respondent to the petitioner on 18.12.2007 stating that the provisional selection of the petitioner under the SC category is canceled, in view of the fact that the Community Certificate produced by the petitioner shows that the said Certificate was not issued by the competent authority within the State of Tamil Nadu. The said impugned letter further states that the candidates, who obtained Community Certificate from any other States other than the Tamil Nadu will be considered only under the General category alone. The petitioner contending that Community Certificate obtained from the State of Nagaland as the one belonging to Schedule Tribe category, this Writ Petition is filed seeking appointment under the Schedule Tribe category. 2. The learned counsel for the petitioner submitted that it is not in dispute that the petitioner is a Schedule Tribe candidate hailing from the State of Nagaland. The learned counsel for the petitioner further stated that even the guidelines issued by the University of Madras would show that the candidates from other State shall be considered under the General turn except Scheduled Caste and Schedule Tribe category. The learned counsel for the petitioner further submitted that in as much as there is no specific bar under the prospectus, the petitioner cannot be denied the status of Schedule Tribe candidate after allowing a seat for the examination and after provisional selection of her for the post of Lecturer to the Department of Botony. The learned counsel for the petitioner also relied upon Judgment reported in 2006 (3) TLNJ 94 (Civil), Dr.M.Vennila Vs. Tamil Nadu Public Service Commission, in support of the case of the petitioner and contended that in the absence of any prohibition under the prospectus, a candidate cannot be denied the right accrued to her. The learned counsel for the petitioner also relied upon the Judgment reported in 2005 (3) SCC S.Pushpa and Others Vs Sivachanmugavelu and others and AIR 1992 Gujarat 42 State of Gujarat and another Vs R.L.Patel, and submits that the candidate belonging to Schedule Tribe in some other States, has to be treated as a candidate belonging to the migrant states. 3. The learned counsel for the petitioner also relied upon the Judgment reported in JT 1999 (9) SC 334 Purushottam Vs. Chairman, M.S.E.B. and another and contends that the selected candidate has to be given appointment and the same cannot be taken away. The learned counsel for the petitioner finally relied upon the Judgment 2005 (3) CTC 658, R.Venu Vs. The State Level Scrutiny Committee and Secretary to Government, Adi-dravidar and Tribal Welfare Department, Fort St. George, Chennai and Others, wherein this Court has considered the facts to be taken out while qualifying the Schedule Tribe community in one State by the community of another State. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned Government Pleader per contra submitted that the prospectus is very specific that the Schedule Tribe caste candidate will have to get the Certificate within a time given under the prospectus from the competent authority mentioned therein. According to the learned Government Pleader, the Judgments relied upon the counsel for petitioner are infact against the petitioner, since the petitioner cannot contend against the specific clause provided in the prospectus. The learned Government Pleader further contended that the guidelines issued by the Government by way of number of Government Orders clearly state the authority, who can issue such certificates and further submitted that the State is the only authority in whose jurisdiction if a candidate resides over the years to issue Community Certificates. 5. The learned Government Pleader strongly relied upon the Judgment of Constitutional Bench reported in 1994 (5) SCC 244, State of Maharashtra Vs. Union of India and submitted that Schedule Tribe/Scheduled Caste candidates cannot carry any status from the State of his origin to the migrant State. The learned Government Pleader further submitted that in the present case, Government has taken a policy decision that the Schedule Tribe candidate from other States will not be considered as Schedule Tribe and Scheduled Caste candidates of the State of Tamil Nadu. The Government Pleader produced a copy of the guidelines issued by the Public Service Commission, in which Clause No.9 of the guidelines specifically provides as mentioned by the Government Pleader. Further, the letter issued by the Government addressed to the Education Department, after referring to the Government Order passed in G.O.Ms.358, dated 03.10.2007 specifically states that the persons coming from other States will be considered only under the General Category. Hence, the Government Pleader submits in view of the above said specific provisions, the request of the petitioner has to be rejected. Further even under General category, the case of the petitioner cannot be considered, since marks obtained is very low. 6. I have heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents. 7. As rightly submitted by the Government Pleader, the issue raised by the learned counsel for the petitioner has been answered by the Constitutional Bench of the Hon'ble Supreme Court in the Judgment reported on (1994) 5 SCC 244 State of Maharashtra vs. Union of India. In para 8 of the said judgment In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had migrated. To remove this difficulty https://hcservices.ecourts.gov.in/hcservices/ experienced by them the earlier instructions contained in the letter of 22.03.1977, and the subsequent letter of 29.03.1982, were modified, in that, the prescribed authority of a State/Union Certificate to a person who had migrated from another State on production of a genuine certificate issued to his father by the prescribed authority of the State of the father's origin except where the prescribed authority considered a detailed enquiry necessary through the State of origin before issue of certificate. It was further stated that the certificate will be issued irrespective of whether the Caste/Tribe in question is scheduled or not in relation to the State/Union Territory to which the person has migrated. Of course, this facility did not alter the Scheduled Caste/Tribe status of the person in relation to the one or the other State. The revised form of the certificate was circulated. Further, it was clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of education, employment, etc., will be deemed to be Scheduled Caste/Tribe of the State of his origin only and will be entitled to derive benefits from that State and not from the State to which he had migrated. By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to be so issued would be in relation to the State/Union territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. Therefore, the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate. This was reiterated in a subsequent letter dated 15.10.1987 addressed to Smt. Shashi Misra, Secretary, Social Welfare, etc., in the State of Maharashtra. In paragraph 4 of that letter it was specifically stated: "Further, a Scheduled Caste person, who has migrated from the State of his origin, which is considered to be his ordinary place of residence after the issue of the first Presidential Order, https://hcservices.ecourts.gov.in/hcservices/ 1950, can get benefit from the State of his origin and not from the State to which he has migrated." So stating the proposal regarding reduction in the period of cut-off point of 1950 for migration was spurned. It was stated that the proposal could have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on all-India basis which, it was said, was not feasible in view of the provisions of Articles 341 and 342 of the Constitution. It will thus, be seen that so far as the Government of India is concerned , since the date of issuance of the communication dated 22.03.1977, it has firmly held the view that a Scheduled Caste/Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he cannot claim benefit as such in the latter State. The above said Judgment makes it clear that a person hailing from one State will not carry his status of Schedule Tribe to the migrant State. Of course it is for the migrant State to consider the fact as to whether a particular community from other State can be taken as a Schedule Tribe/Scheduled caste person in the migrant State. Further in the present case on hand, the guideline issued by the Tamil Nadu Public Service Commission as well as the Government Order relied upon by the learned Government Pleader would clear show that all the candidates coming from other States and seeking appointments in the State of Tamil Nadu will only be considered under the general category. Further, the guidelines relied upon by the learned counsel for the petitioner issued by the University of Madras also does not support the case of the petitioner and the said guideline cannot bind the Government and it is only for the purpose of undergoing studies and not for the purpose of appointing a person to the post. Therefore, the guidelines relied upon by the learned counsel for the petitioner is not applicable to the present case. 8. In so far as the contention of the learned counsel for the petitioner that prospectus issued by the respondents does not prohibit the appointment of candidates to the post of Lecturer is concerned, the said contention also does not hold good. A Reading of the contents of the prospectus would clearly shows that the community certificate will have to be obtained on or before the last date of submission of the Application Form. The said prospectus also states about the authorities from whom the said certificate is to be obtained. Admittedly the petitioner has not obtained the said certificate. The prospectus will have to be read as a whole. In the Judgment reported in 2006 (3) TLNJ 94, Dr.M.Vennila Vs. Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Public Service Commission, rep. by Deputy Secretary Government Estate, Anna Salai, Chennai-600 002, the Hon'ble Division Bench of this Court has held that the prospectus is having force of law and the same is pending on the authorities. Therefore as rightly contended by the learned Government Pleader the petitioner cannot claim that she should be treated as Schedule Tribe candidate. More over the selection of the petitioner is only provisional and hence the said selection will not confer the petitioner a vested right seeking for an appointment. 9. The Judgment relied only the learned counsel for the petitioner reported in AIR 1992 Gujarat 42, State of Gujarat and Another Vs. R.L. Patel, is also not applicable to the present case. In the Judgment reported in 2005 (3) SCC Page-1, the Union Territory of Pondicherry, S.Pushpa and Others Vs. Sivachanmugavelu and Others, has taken as stand that it is following the Policy of the Central Government. In the said case there was no separate reservation for the Union Territory. Therefore as per the decision of the Hon'ble Supreme Court the policy of the Central Government was followed in the absence of any provision making a specific reservation for the Schedule Tribe/Scheduled Caste community by the Union Territory. However in the present case, a specific policy has been adopted by the State Government treating the candidates from other States under the General Category irrespective of their community in the other state. It is a well settled principles of law that Article 226 of the Constitution of India the Court cannot question the wisdom of State Government, which evolves a policy. The decision of the State Government in conferring the status of the outside candidates by keeping them under General Category is one of the policy decision and hence the same cannot be interfered. 10. Similarly the Judgment relied upon the learned counsel in JT 1999 (9) SC 334 Purushottam Vs. Chairman, M.S.E.B. and Another also cannot be applied to the present case, since in the said case the petitioner was not given appointment on the ground that the Screening Committee was dissolved and therefore the Hon'ble Supreme Court held that the selected candidate cannot be denied the post. Similarly the Judgment reported in 2005 (3) CTC 658, R.Venu Vs. The State Level Scrutiny Committee and Secretary to Government, Adi-dravidar and Tribal Welfare Department, Fort St. George, Chennai and Others, relates to the issue of consideration of classification of community from one State to another State by the Screening Committee. Hence the above said facts are also different from the present case and hence the same are not applicable. 11. Coming of the merits of the case, as submitted the learned Government Pleader even on merits the petitioner stands to lose and therefore even under the General Category she cannot be considered. Hence, taking into consideration the factual position as well as the various decision of this Court no case is made out. https://hcservices.ecourts.gov.in/hcservices/ 12. Accordingly the Writ Petition shall stand dismissed. Consequently, connected miscellaneous petitions are closed. No costs. 13. It is made clear that the dismissal of the Writ Petition will not stand in the way of Writ Petitioner approaching the appropriate authority seeking for valuation of her Community Certificate. krk Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To: 1.The Government of Tamil Nadu, rep. by its Secretary to Government, Education Department, Fort St. George, Chennai-600 009, 2.Tamil Nadu Teachers Recruitment Board, rep. by its Chairman, IV Floor, EVK Sampath Maligai, College Road, Chennai-600 008. + 1 cc to Mr. A. Amalraj Advocate SR.37348 + 1 cc to Government Pleader SR.37616 W.P.No.3072 of 2008 MDR(CO) EU 22.09.2009. https://hcservices.ecourts.gov.in/hcservices/