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Article 342 in The Constitution Of India 1949

Bombay High Court
Preeti Gopalrao Kamble vs 5 The Principal on 10 October, 2012
Bench: R. M. Borde, S. S. Shinde

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO.3627 OF 2011

Preeti Gopalrao Kamble,

age: 20 years, Occ: student,

R/o Azad Nagar, Zalkot Road,

Udgir, Tq.Udgir, Dist.Latur. Petitioner

Versus

1 The State of Maharashtra,

through its Secretary,

Social Welfare Department,

Mantralaya, Mumbai.

2 The Divisional Caste Scrutiny

Committee No.2,

Aurangabad Division,

Latur.

3 The Sub Divisional Officer,

Udgir, District Latur.

4 The Registrar,

Maharashtra University of

Health Science, Nashik.

5 The Principal,

Dhanuwantari Ayurved Medical

College, District Latur. Respondents

Mr.Anandsingh S. Bayas, advocate for the petitioner. Mrs.S.D.Shelke, A.G.P. For Respondent Nos.1 to 3. Mr.P.S.Dighe, advocate holding for Mr.V.R.Dhorde, advocate for Respondent No.4.

Respondent No.5 served.

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WITH

WRIT PETITION NO.7138 OF 2012

Narsabai d/o Govind Kamble,

alias Sau.Neha w/o Ghamsham Kamble,

age: 42 years, Occ: service as

Staff Nurse, Government Medical College

and Hospital, Latur,

R/o Latur, Dist.Latur. Petitioner

Versus

1 The State of Maharashtra,

through its Secretary,

Social Welfare Department,

Mantralaya, Mumbai-32.

2 The Divisional Caste Certificates

Scrutiny Committee No.2,

Aurangabad Division,

Latur, through its Member Secretary.

3 The Dean,

Government Medical College and

Hospital, Latur. Respondents

Mr.P.G.Rodge, advocate for the petitioner. Mrs.S.D.Shelke, A.G.P. For Respondents.

CORAM : R.M.BORDE &

S.S.SHINDE, JJ.

Reserved on : 25th September, 2012.

th

Pronounced on:10 October, 2012.

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JUDGMENT (Per R.M.Borde, J.):

1 Rule. Rule made returnable forthwith and heard

finally by consent of learned Counsel for respective parties.

2 Petitioners, in both the petitions, are challenging the

orders passed by Respondent No.2-Committee invalidating their

caste claim on the ground that parents of petitioners are originally

residents of District Bider, which forms part of Karnataka State

and that they have migrated to the State of Maharashtra after

10.08.1950 i.e. after enforcement of Constitution Scheduled Castes

Order, 1950.

3 It is not disputed that parents and forefathers of

petitioners are original residents of District Bider, the geographical

area, which was forming part of erstwhile State of Hyderabad,

before States Re-Organization. The part of District Bider, after re-

organization of States in 1956, has become part of State of

Karnataka. It is also not disputed that petitioners originally belong

to an area which is predominantly a Marathi speaking area, which

presently forms part of State of Karnataka. The State of

Maharashtra has claimed that 865 villages, presently included in

the State of Maharashtra, which comprises of predominantly

Marathi speaking population, shall in fact form part of State of

Maharashtra. The State of Maharashtra has extended benefits to

the residents of disputed 865 villages which presently form part of {4}

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State of Karnataka after reorganization of States in the matter of

education and employment. A Resolution has been passed by the

State of Maharashtra on 25.04.2007 extending opportunity in

employment to the residents of 865 disputed bordering villages in

the cadre of primary teachers/Shikshan Sevaks. The Diploma in

Education awarded by the State of Karnataka i.e. T.C.H. is equated

with D.Ed. qualification recognised in the State of Maharashtra,

thereby extending opportunity of employment to the eligible

candidates from disputed 865 bordering villages.

4 A decision has also been taken by the State of

Maharashtra, which is reflected in Government Resolution dated

10th July, 2008 to permit the residents of 865 bordering villages to

apply for the posts coming within the purview of Maharashtra

Public Service Commission, thus, extending opportunity of

employment to the eligible candidates from disputed villages. The

petitioners are originally residents of village Lakhangaon and

Wanjarkheda, Tq.Bhalki, District Bider, which form part of District

Bider and is included in 865 disputed bordering villages. It is also

not disputed that parents of the petitioners have migrated to the

State of Maharashtra and have settled in the State of

Maharashtra.

5 The petitioner in Writ Petition No.3627/2011 has been

admitted to B.A.M.S. Course against a seat reserved for Scheduled {5}

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Caste category, whereas, petitioner in Writ Petition No.7138/2012

has been appointed as Staff Nurse as against a seat earmarked for

Scheduled Caste category. Petitioners, in both the petitions,

belong to "Mahar", Scheduled Caste, which is recognised in both -

the State of Maharashtra as well as State of Karnataka. The caste

claims of the petitioners have been turned down by Respondent No.

2-Committee mainly on the ground that parents of the petitioners

are original residents of District Bider, which form part of State of

Karnataka and as such, petitioners are not entitled to claim

benefits in the State of migration.

6 The issue arising in the matters is, as to whether the

petitioners, who are belonging to "Mahar" - Scheduled Caste, which

stands recognised in both - the State of Maharashtra as well as

State of Karnataka, having their origin in the region Bider district,

a part of which, on States' reorganization, has come to State of

Maharashtra, whereas, part is included in the State of Karnataka,

are entitled to claim benefits of reservation. The issue is no more

res integra in view of decision of the Supreme Court in the matter

of Sudhakar Vitthal Vs. State of Maharashtra, reported in 2004

(4) Mh.L.J. 784, as well as two decisions of the Division Bench of

this Court in the matter of Santosh Padoti Vs. Caste Scrutiny

Committee, reported in 2006 (Supp.), Bom.C.R. 797; and in the

matter of Hitesh Dasiram Murkute Vs. State of Maharashtra &

others, reported in 2007 (4) Bom.C.R. 784. In the matter of {6}

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Sudhakar Vitthal Kumbhare, petitioner before the Apex Court

was originally resident of village Pandhurna, District Chhindwara

in Madhya Pradesh. After reorganization of States, the part of

District Chandrapur, which was originally in the State of Madhya

Pradesh, has become part of State of Maharashtra. The tribe

'Halba', to which petitioner before the Supreme Court belongs, is

recognized as scheduled tribe in both - the State of Maharashtra

as well as State of Madhya Pradesh. The tribe claim of the

petitioner therein was not forwarded to the Scrutiny Committee on

the ground that he belongs to a region which forms part of State of

Madhya Pradesh and in view of the decision in the matter of

Action Committee On the Issue of Caste Certificate to

Scheduled Castes and Scheduled Tribes in the State of

Maharashtra Vs. Union of India, reported in 1994 (5) SCC 244, he

is not entitled to claim benefits in the State of migration. The

Supreme Court, while dealing with the question, has observed in

paragraph 5 of the judgment, thus:

5 .... The question is as to whether the appellant being a Scheduled Tribe known as Halba / Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in the Chhindwara region, a part of which, on States' reorganization, has come to State of Maharashtra, was entitled to the benefit of reservation ? It is one thing to say that the expression "in relation to that State" occurring {7}

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in Article 342 of the Constitution of India should be given as 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 Tribes 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 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."

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7 In the matter of Santosh Padoti Vs. Caste Scrutiny

Committee (cited supra), the petitioner, who belongs to 'Gond'

tribe, was permanent resident of Charbhata, District Rajnandgaon,

Madhya Pradesh and shifted and settled at Totladoh in State of

Maharashtra. His tribe claim was turned down on the ground

that he is not entitled to claim concessions of 'Gond'- scheduled

tribe. Relying on the judgment in the matter of Sudhakar Vitthal

(cited supra), the Division Bench of this Court directed the

Scrutiny Committee to consider claim of the petitioner. It was also

found by the Division Bench that by virtue of Constitutional

Scheduled Tribe Order 1950, tribe 'Gond' has been considered as

scheduled tribe in both the States i.e. State of Maharashtra as well

as State of Madhya Pradesh and as such, petitioner, in the petition

before the Division Bench, was held entitled to claim benefits

accruable to 'Gond' Scheduled Tribe.

8 In the instant matter also, 'Mahar' Scheduled Caste is

recognized in both the States. The degree of disadvantages of

various elements which constitute the input for specification may

not be totally different and both the States, after reorganization,

have agreed for inclusion of 'Mahar' Scheduled Caste having regard

to the said fact. Petitioners, therefore, who belong to scheduled

caste, which is recognized in both the States and hail from a region

which form part of erstwhile Hyderabad State, a part of which is {9}

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presently included in the State of Maharashtra, are entitled to

claim benefits of reservation in the State of migration i.e. in the

State of Maharashtra.

9 Reliance can be placed on the judgment of the Division

Bench in the matter of Hitesh Dasiram Murkute Vs. State of

Maharashtra & others, reported in 2007 (4) Bom.C.R. 784. The

petitioner, in the reported matter, was a student of Engineering

and belong to 'Kalar' - Other Backward Class and the Scrutiny

Committee refused to examine his claim since he was a migrant.

In the reported matter, petitioner's family is original resident of

Madhya Pradesh and since he could not produce proof of residence

in the State of Maharashtra prior to 1950, the Committee refused

to decide his caste claim in the light of Government Resolutions

dated 24.08.1995 and 21.08.1996. The Division Bench, while

dealing with the issue, has considered the judgment in the matter

of Sudhakar Vitthal (cited supra), so also the judgment of the

Supreme Court in the matter of Marri Chandra Vs. Dean, S.G.S.

Medical College, (1990) SCC 130, Action Committee On the

Issue of Caste Certificate to Scheduled Castes and Scheduled

Tribes in the State of Maharashtra Vs. Union of India, reported

in 1994 (5) SCC 244, and the Division Bench judgment in the

matter of Bankimchandra Vs. State of Maharashtra, reported in

2006 (Supp.) Bom.C.R. 797, and has arrived at following

conclusions:

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"Conclusions:

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.

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(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 get 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 (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 Marrie Chandra's case the caste "Gouda" was notified in the State of {12}

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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 explaning and following the ratio in Marrie 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 schedule 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 Vs. 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 {13}

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part of the locality other than his place of origin has gone."

10 In view of judgment of the Supreme Court in

Sudhakar's case, a migrant belonging to a community which was

recognised as Scheduled Caste or Scheduled Tribe in any locality,

which has been divided upon reorganization of States, the migrant

would be entitled to the benefits of reservation even in the State, in

which part of locality other than his place of origin, has been

included.

11 In the instant matter, parents of the petitioners

originally belong to Bider district. The part of the locality, to which

petitioners belong, has been included in District Bider, which is

presently included in the State of Karnataka, was part of erstwhile

State of Hyderabad. The part of State of Hyderabad comprising of

Marathwada region has been included in the State of Maharashtra

after reorganization. The locality, to which petitioners originally

belong, is predominantly Marathi speaking locality which forms

part of bordering region of State of Karnataka. The State of

Maharashtra has put forth claim in respect of 865 disputed

villages which presently forms part of State of Karnataka. Not only

this, the State of Maharashtra has extended benefits to the

residents of those bordering villages in the matter of education and

employment in the State of Maharashtra.

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12 In this view of the matter and considering the legal

position emerging from the judgment of the Apex Court in the

matter of Sudhakar (cited supra), we are of the considered opinion

that Respondent No.2-Committee had fallen in error in invalidating

caste claims of the petitioners only on the ground that original

place of residence of parents of the petitioners presently forms

part of State of Karnataka. Both the petitions, therefore, deserves

to be allowed.

13 Both the Writ Petitions are allowed. Impugned

orders passed by Respondent No.2-Scrutiny Committee

are quashed and set aside and the matters are remitted

back to Respondent No.2-Committee for reconsideration.

Respondent No.2-Committee shall decide caste

claims of respective petitioners considering evidence placed before

the Committee and after extending opportunity of

hearing to the petitioners for putting forth their contentions afresh,

in accordance with provisions of law. The caste

claims of the petitioners shall not be rejected only

on the ground that parents of petitioners originally belong

to a region which presently forms part of State of Karnataka, since

the aforesaid region, prior to States reorganization was forming

part of State of Hyderabad, part of the locality of said District

presently forms part of State of Maharashtra. Until decision by {15}

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Respondent No.2-Committee in respect of validation of caste claim

of petitioners, no adverse action shall be taken against them.

14 Rule is accordingly made absolute. There shall be no

order as to costs.

S.S.SHINDE R.M.BORDE JUDGE JUDGE

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