Marri
Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College & Ors [1990] INSC 177 (2 May 1990)
Mukharji,
Sabyasachi (Cj) Mukharji, Sabyasachi (Cj) Ramaswamy, K. Ray, B.C. (J) Sharma,
L.M. (J) Sawant, P.B.
CITATION:
1990 SCR (2) 843 1990 SCC (3) 130 JT 1990 (2) 285 1990 SCALE (1)3
ACT:
Constitution
of India, 1950: Articles 341 and
342--Scheduled Castes and Scheduled Tribes--Reserva- tion--Whether one who is recognised
as Scheduled Tribe in the State of origin and birth continues to have the
benefits or privileges or rights in the State of Migration? Interpre- tation of the expressions 'in relation to that
State' and 'for the purposes of this Constitution'.
Professional
Colleges--Admission to--Maharashtra State Medical College--Admission
to--Applicant belonging to Gouda Community Scheduled Tribe in Andhra
Pradesh--Gouda Community not Scheduled Tribe in Maharashtra--Applicant not
entitled to claim seat on the basis of reservation.
HEAD NOTE:
The
Petitioner was born in Tenali in the State of Andhra Pradesh and belonged to the Gouda Community which is claimed to
have been recognised as 'Scheduled Tribe' under the Constitution. His father
had been issued an Scheduled Tribe Certificate and it is on the basis of the
quota reserved for Scheduled Tribes that he was appointed in the Fertilizer
Corporation of India and later with the Rashtriya
Chemical & Fertilizer, Ltd., and posted in Bombay since 19.6.1978. The Petitioner was also living with his
father in Bombay since the age of nine years and
took his education there upto 12th standard securing 165 marks in the
aggregate, in Physics, Chemistry and Mathematics.
For
the academic year 1989-90 he applied for admission to the M.B.B.S. Course in
three colleges run by the Bombay Municipal Corporation and one by the State of Maharashtra seeking the benefit of reservation
in favour of the Sched- uled Tribes. The Petitioner was not admitted to any of
the colleges though some scheduled tribe candidates who had secured lesser
marks than him were admitted. The reason for denial of admission to him was
that he was not entitled' to scheduled tribe Status of his origin and birth as Gouda was not recognised as Scheduled
Tribe in Maharashtra State.
844
Disposing of the Writ Petition filed by the Petitioner, this Court,
HELD:
Equality is the dictate of our Constitution.
Article
14 ensures equality in its fullness to all our citizens. State is enjoined not
to deny to any person equal- ity before law and equal protection of the law
within the territory of India. Where, it is necessary, however, for the purpose of
bringing about real equality of opportunity between those who are unequals,
certain reservations are necessary and these should be ensured. Equality under
the Constitution is a dynamic concept which must cover every process of equalisation.
Equality must become a living reality for the large masses of the people. Those
who are unequal, in fact, cannot be treated by identical standards;
that
may be equality in law but it would certainly not be real equality. Existence
of equality of opportunity depends not merely on the absence of disabilities
but on the presence of abilities. Dejure equality must ultimately find its
reason of the indefacto equality. [848E-G] Balancing must be done as between
those who need protec- tion and those who need no protection, i.e., those who
belong to advantaged castes or tribes and those who do not.
Treating
the determination under Articles 341 and 342 to be valid for all over the
country would be innegation to the very purpose and scheme and language of
Article 341 read with Article 15(4). [855C-D] Nothing is surplus in a
Constitution and no part should be made nugatory. Having regard, however, to
the purpose and the scheme of the Constitution which would be just and fair to
the Scheduled Castes and Scheduled Tribes not only of one State of origin but
other states also where the Scheduled Castes or Tribes migrate in consonance
with the rights of other castes or community, rights would be harmoniously
balanced. Reservations should and must be adopted to advance the prospects of
weaker sections of society, but while doing so care should be taken not to
exclude the legitimate expec- tations of the other segments if the community
[858A-B] The petitioner is not entitled to be admitted to the Medical Colleges
in Maharashtra on the basis that he be- longed to the scheduled tribe in Andhra
Pradesh. The ques- tion of petitioner's right to be admitted as being domicile
does not fail for consideration. [860E] 845
ORIGINAL
JURISDlCTON: writ Petition (Civil) No. 989 of 1989.
(Under
Article 32 of the Constitution of India).
Raju Ramachandran,
Mrs. Sadhna Ramachandran and Ravinder Bhatt for the Petitioner.
Soli
J. Sorabjee, Attorney General, S.K. Dholakia. R.P. Bhatt, A.S. Bobde, V.A. Gangal,
A.S. Bhasme, Ms. A. Subha- shini, V.NGanpule and S. Sukumaran for the
Respondents.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. The issues
involved in this writ petition under Article 32 of the Constitution are of
seminal importance for the country and the people. The principles which should
be applicable in governing the problem are indisputable. Their application,
however, presents certain amount of anxiety.
The
petitioner, a citizen of India, was born on 6th October, 1969 in Tenali in the State of Andhra Pradesh. He belongs to the Gouda community also known as "Goudu",
it is stated in the petition. This community is recognised as 'scheduled tribe'
in the Constitution (Scheduled Tribes) Order, 1950, as amended upto date. We
are not concerned with the correctness or otherwise of the factual position on
this aspect in this application. The father of the petitioner had been issued a
Scheduled Tribe Certificate by the Tasildar, Tenali, Andhra Pradesh on 3rd August, 1977. On the basis of the said certificate,
the father of the petitioner was appointed in the Fertilizer Corporation of India, a public sector undertaking, on 17th October, 1977 in the Scheduled Tribes quota. On the 19th June, 1978, the petitioner's father joined the
Rashtriya Chemicals and Fertilizers Ltd., a Government of India undertaking,
under the quota reserved for Scheduled Tribes and he has been stationed in Bombay since then. The petitioner,
therefore, came to live in Bombay, in the
state of Maharashtra, since the age of nine years. The
petitioner completed his secondary and higher education in Bombay. In March, 1989, the petitioner
passed the 12th standard examination of 'the Maharashtra State Board of
Secondary and Higher Secondary Examination, Bombay Divisional Board, securing
165 marks in the aggregate in Physics, Chemistry and Mathematics. For the
academic year 1989-90, the petitioner submitted his application for three
medical colleges in Bombay which are run by the Bombay
Municipal Corporation (Respondent No. 2 herein) and for one medical college in Bombay run by the State of Maharashtra (respondent No. 3). The total
number of 846 seats in the three medical colleges run by the Municipal
Corporation for the MBBS Course is 400 out of which 7% i.e. 28 seats were
reserved for Scheduled Tribes. The total number of seats in the medical college
run by the State of Maharashtra is 200 out of which 7% i.e. 14
seats are re- served for Scheduled Tribes. The petitioner sought and availed
the benefit of the reservation in favour of the Scheduled Tribes. The
petitioner was however not admitted to the MBBS course in either the medical
colleges run by the Bombay Municipal Corporation or the State of Maharashtra, though indubitably Scheduled
Tribes candidates who had secured lesser marks than him had been admitted. The undis-
puted reason for denial of admission to the petitioner was that the petitioner
was not entitled to Scheduled Tribe status of his origin, in which this
community is specified as a Scheduled Tribe in the Constitution (Scheduled
Tribes) Order, 1950.
There
is a circular dated 22nd
February, 1985 issued
by the Government of India, Ministry of Home Affairs which, inter alia, states:
"It
is also clarified that a Scheduled Caste/Tribe person who has migrated from the
State of origin to some other State for the purpose of seeking education,
employment etc.
will
be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be
entitled to derive benefits from the State of origin and not from the State to
which he has migrated.
The
admission forms issued by the Municipal Corporation as well as Government
indicate the requirement of "domicile" of 15 years. The petitioner
states that he has produced a domicile certificate indicating his stay in Maharashtra for over 10 years since 1978. This
issue, however, is not before this Court in this writ petition. This issue had
not been raised before this Court. In the counter-affidavit filed on behalf of
the State of Maharashtra, the objection was on the
interpretation of Article 342 of the Constitution and there was no contention
raised on the question of domicile. It is, therefore, necessary to refer to
Article 342. Article 342 of the Constitution reads as follows:
"342.
Scheduled Tribes: (i) The President may with respect to any State or Union
Territory, and where it is a State, after consultation with the Governor
thereof, by public notification, specify the tribes or tribal communities or
parts of or groups within tribes or tribal communities 847 which shall for the
purposes of this Constitution be deemed to be Scheduled Tribes in relation to
that State or Union Territory, as the case may be.
(2)
Parliament may by law include in or exclude from the list of Scheduled Tribes
specified in a notification issued under clause (1) 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." In this connection, it may also be relevant
to refer to Article 341 as it deals with the Scheduled Castes:
"341.
Scheduled Castes (1)The President may with respect to any State or Union
Territory, and where it is a State after consultation with the Governor
thereof, by public notifica- tion, specify the castes, races or tribes or parts
of or groups within castes, races or tribes which shall for the purposes of
this Constitution be deemed to be Scheduled Castes in relation to that State or
Union Territory, as the case may be.
(2)
Parliament may by law include in or exclude from the list of Scheduled Castes
specified in a notification issued under clause (1) 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." The question, therefore, that arises in this case, is
whether the petitioner can claim the benefit of being a Scheduled Tribe in the
State of Maharashtra though he had, as he states, a Scheduled Tribe certificate
in the State of Andhra Pradesh? Inasmuch as we are not concerned in this
application with the controversy as to whether the petition- er correctly or
appropriately belongs to the Gouda community or not, or whether the petitioner
had a proper certificate, it is desirable to confine the controversy to the
basic question, namely, whether one who is recognised as a Sched- uled Tribe in
the State of his origin and birth continues to have the benefits or privileges
or rights in the state of migration or where he later goes.
In
this connection, the provisions of Articles 34 1 and 342 of the 848
Constitution have been noticed. These articles enjoin that the President after
consultation with the Governor where the States are concerned, by public
notification, may specify the tribes or tribal communities or parts of or
groups of tribes or tribal communities, which shall be deemed to be Scheduled
Tribes in relation to that State under Article 341 and 342 Scheduled Tribes in
relation to that State or Union Territory. The main question, therefore, is the
specifica- tion by the President of the Scheduled Caste or Scheduled Tribes, as
the case may be, for the State or Union Territory or part of the State. But this
specification is 'for the purposes of this Constitution'. It is, therefore,
necessary, as has been canvassed, to determine what the expression 'in relation
to that state' in conjunction with 'for the pur- poses of this Constitution'
seeks to convey.
Article
15 of the Constitution prohibits discrimination on grounds of religion, race,
caste, sex or place of birth.
Article
15(4), however, enjoins that nothing in that article or in clause (2) of
Article 29 of the Constitution shall prevent the State from making any special
provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Therefore, reservation in favour of Sched- uled Tribes or Scheduled Castes for
the purpose of advance- ment of socially or educationally backward citizens to
make them equal with other segments of community in educational or job
facilities is the mandate of the Constitution. Equal- ity is the dictate of our
Constitution. Article 14 ensures equality in its fullness to all our citizens.
State is enjoined not to deny to any person equality before law and equal
protection of the law within the territory of India.
Where,
it is necessary, however, for the purpose of bringing about real equality of
opportunity between those who are unequals, certain reservations are necessary
and these should be ensured. Equality under the Constitution is a dynamic
concept which must cover every process of equalisa- tion. Equality must become
a living reality for the large masses of the people. Those who are unequal, in
fact, cannot be treated by identical standards; that may be equality in law but
it would certainly not be real equality. Existence of equality of opportunity
depends not merely on the absence of disabilities but on presence of abilities.
It is not simply a matter of legal equality. De jure equality must ultimately
find its raison d'tre in de facto equality. The State must, therefore, resort
to compensatory State action for the purpose of making people who are factually
unequal in heir wealth, education or social environment, equal in specified
areas. it is necessary to take into account de facto inequalities which exist
in he society and to take affirmative action by way of giving preference 849
and reservation to the socially and economically disadvan- taged persons or
inflicting handicaps on those more advanta- geously placed, in order to bring
about real equality. Such affirmative action though apparently discriminatory
is calculated to produce equality on a broader basis by elimi- nating de facto
inequalities and placing the weaker sections of the community on a footing of
equality with the stronger and more powerful sections so that each member of
the commu- nity, whatever is his birth, occupation or social position may enjoy
equal opportunity of using to the full his natural endowments of physique, of
character and of intelligence. In this connection. reference may be made to the
observations of this Court in Pradeep Jain & Ors. v. Union of India &
Ors., [1984] 3 SCC 654.
It
appears that Scheduled Castes and Scheduled Tribes in some States had to suffer
the social disadvantages and did not have the facilities for development and
growth. It is, therefore, necessary in order to make them equal in those areas
where they have so suffered and are in the state of under development to have
reservations or protection in their favour so that they can compete on equal
terms with the more advantageous or developed sections of the communi- ty.
Extreme social and economic backwardness arising out of traditional practices
of untouchability is normally consid- ered as criterion for including a
community in the list of Scheduled Castes and Scheduled Tribes. The social conditions
of a caste, however, varies from state to state and it will not be proper to generalise
any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole
country.
This,
however, is a different problem whether a member of the Scheduled Caste in one
part of the country who migrates to another State or any other Union Territory
should contin- ue to be treated as a Scheduled Caste or Scheduled Tribe in
which he has migrated. That question has to be judged taking into consideration
the interest and well-being of the Sched- uled Castes and Scheduled Tribes in
the country as a whole.
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 suffi- ciently 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 for how long to become equal with others is a
matter of delicate social adjustment. These must be so balanced in the 850
mosaic of the country's integrity that no section or commu- nity 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 determi- nation 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 Scheduled Castes and Scheduled Tribes (Amendment)
Order Bill, 1967. It may also be worthwhile to refer to the proceedings of the
Con- stituent Assembly on the 17th September, 1949 dealing with Articles 303 and 304, which later on became
Articles 341 and 342 respectively. Dr. B.R. Ambedkar moving the Resolution
observed as follows:
"That
after article 300, 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 Constitution be
deemed to be Scheduled Castes in relation to the State.
(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 notifica- tion.
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 851
Constitution 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 Constitution 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 privi- leges which have been defined for them in the Constitution.
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." Our attention was also drawn to the views of Prof. K.T. Shah
in the Constituent Assembly which are as follows:
"That
at the end of clause (2) of article 9, the following be added:-- 'or for
Scheduled Castes or backward tribes, for their advantage, safeguard or
betterment'" The clause, as it is, stands thus:
"Nothing
in this article shall prevent the States from mak- 852 ing any special
provision for women and children." Sir, it must be distinguished from the
preceding article. I read it, at any rate, that this is a provision for discrimi-
nation in favour of women and children, to which I have added the Scheduled
Castes or backward tribes. This discrim- ination is in favour of particular
classes of our society which, owing to an unfortunate legacy of the past,
suffer from disabilities or handicaps. Those, I think, may require special
treatment; and if they do require it, they should be permitted special
facilities for some time so that real equality of citizens be established.
The
rage for equality which has led to provide equal citi- zenship and equal fights
for women has sometimes found exception in regard to special provisions that,
in the long range, in the interest of the country or of the race, ex- clude
women from certain dangerous occupations, certain types of work. That I take it,
is not intended in any way to diminish their civic equality or status as
citizens. It is only intended to safeguard, protect or lead to their better- ment
in general; so that the long-range interests of the country may not suffer.
In
regard to the scheduled castes and backward tribes, it is an open secret that
they have been neglected in the past; and their fights and claims to enjoy and have
the capacity to enjoy as equal citizens happens to be denied to them because of
their backwardness. I seek therefore by this motion to include them also within
the scope of this sub- clause (2), so that any special discrimination in favour
of them may not be regarded as violating the basic principles of equality for
all classes of citizens in the country. They need and must be given, for some
time to come at any rate, special treatment in regard to education, in regard
to opportunity for employment, and in many other cases where their present
inequality, their present backwardness is only a hindrance to the rapid
development of the country.
Any
section of the community which is backward must neces- sarily impede the
progress of the rest; and it is only in the interest of the community itself,
therefore, that it is but 853 right and proper we should provide facilities so
that they may be brought up-to-date so to say and the uniform progress of all
be forwarded.
I
have, of course, not included in my amendment the length of years, the term of
years for which some such special treatment may be given. That may be
determined by the circumstances of the day. I only want to draw your attention
to the fact that there are classes of our citizens who may need, through no
fault of theirs, some special treatment if equality is not to be equality of
name only or on paper only, but equality of fact. I trust this will commend
itself to the House and the amendment will be ac- cepted." It is, however,
necessary to give proper meaning to the expressions 'for the purposes of this
Constitution' and 'in relation to that State' appearing in Articles 341 and 342
of the Constitution. The High Court of Gujarat has taken the view in two
decisions, namely, Kum. Manju Singh v. The Dean, B.J. Medical College, AIR 1986
Gujarat 175 and Ghanshyam Kisan Borikar v.L.D. Engineering College, AIR 1987
Gujarat 83 to which our attention was drawn, that the phrase 'for the purposes
of this Constitution' cannot be and should not be made subservient to the
phrase 'in relation to that State' and therefore, it was held in those two
decisions that in consequence the classification made by one State placing a
particular caste or tribe in the category of Scheduled Castes or Scheduled
Tribes would entitle a member of that caste or tribe to all the benefits,
privileges and protections under the Constitution of India. A similar view has
been taken by the Karnataka High Court in the case of M. Muni Reddy v.
Karnataka Public Service Commission & Ors., [1981] Lab. I.C. 1345. On the
other hand, the Orissa High Court in the case of K. Appa Rao v. Director of
Posts & Telegraphs, Orissa & Ors., AIR 1969 Orissa 220 and the full
Bench of the Bombay High Court in M.S. Malathi v. The Com- missioner, Nagpur
Division & Ors., AIR 1989 Bombay 138 have taken the view that in view of
the expression 'in relation to that State' occurring in Articles 341 and 342,
the bene- fit of the status of Scheduled Castes or Scheduled Tribes would be
available only in the State in respect of which the Caste or Tribe is so
specified. A similar view has been taken by the Punjab & Haryana High Court
in the case of V.B. Singh v. State of Punjab, ILR 1976 1 Punjab & Haryana
769.
It is
trite knowledge that the statutory and constitutional provi- 854 sions should
be interpreted broadly and harmoniously. It is trite saying that where there is
conflict between two provi- sions, these should be so interpreted as to give
effect to both. Nothing is surplus in a Constitution and no part should be made
nugatory. This is well-settled. See the observations of this Court in Sri Venkataramana
Devaru & Ors. v. State of Mysore & Ors., [1958] SCR 895 at 918, where Venkatarama
Aiyar, J. reiterated that the rule of construc- tion is well-settled and where
there are in an enactment two provisions which cannot be reconciled with each
other, these should be so interpreted that, if possible, effect could be given
to both. It, however, appears to us that the expres- sion 'for the purposes of
this Constitution' in Articles 341 as well as in Article 342 do imply that the
Scheduled Castes and the Scheduled Tribes so specified would be entitled to
enjoy all the constitutional rights that are enjoyable by all the citizens as
such. Constitutional right, e.g., it has been argued that right to migration or
right to move from one part to another is a right given to all--to scheduled
castes or tribes and to non-scheduled castes or tribes. But when a Scheduled
Caste or tribe migrates, there is no inhi- bition in migrating but when he migrates,
he does not and cannot carry any special rights or privileges attributed to him
or granted to him in the original State specified for that State or area or
part thereof. If that right is not given in the migrated state it does not
interfere with his constitutional right of equality or of migration or of
carrying on his trade, business or profession. Neither Article 14, 16, 19 nor
Article 21 is denuded by migration but he must enjoy those rights in accordance
with the law if they are otherwise followed in the place where he migrates.
There
should be harmonious construction, harmonious in the sense that both parts or
all parts of a constitutional provision should be so read that one part does
not become nugatory to the other or denuded to the other but all parts must be
read in the context in which these are used. It was contended that the only way
in which the fundamental rights of the petitioner under Article 14, 19(1)(d),
19(1)(e) and 19(1)(f) could be given effect to is by construing Article 342 in
a manner by which a member of a Scheduled Tribe gets the benefit of that status
for the purposes of the Constitu- tion throughout the territory of India. It
was submitted that the words "for the purposes of this Constitution"
must be given full effect. There is no dispute about that. The words "for
the purposes of this Constitution" must mean that a Scheduled Caste so
designated must have right under Arti- cles 14, 19(1)(d), 19(1)(e) and 19(1)(f)
inasmuch as these are applicable to him in his area where he migrates or where
he goes. The expression "in relation to that State" would become
nugatory if in all States the special privileges or the rights granted to
Scheduled Castes or Scheduled Tribes are carried 855 forward. It will also be
inconsistent with the whole purpose of the scheme of reservation. In Andhra
Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because
a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra
that caste or that tribe may not be so inhibited but other castes or tribes
might be. If a boy or a child goes to that atmosphere of Maharashtra as a young
boy or a child and goes in a completely different atmosphere or Maharashtra
where this inhibition or this disadvantage is not there, then he cannot be said
to have that reservation which will denude the children or the people of Maharashtra
belonging to any segment of that State who may still require that protection.
After all, it has to be borne in mind that the protection is necessary for the
disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes
or tribes of Andhra Pradesh. Thus, balancing must be done as between those who
need protection and those who need no protection, i.e., who belong to advan- taged
castes or tribes and who do not. Treating the determi- nation under Articles
341 and 342 of the Constitution to be valid for all over the country would be
in negation to the very purpose and scheme and language of Articles 341 read
with Article 15(4) of the Constitution.
Our
attention was drawn to certain observations in Elizabeth Warburton v. James
Loveland, [1832] House of Lords 499. It is true that all provisions should be
read harmoni- ously. It is also true that no provision should be so read as to
make other provisions nugatory or restricted. But having regard to the purpose,
it appears to us that harmoni- ous construction enjoins that we should give to
each expres- sion--'in relation to that state' or "for the purposes of
this Constitution"--its full meaning and give their full effect. This must
be so construed that one must not negate the other. The construction that
reservation made in respect of the Scheduled Caste or tribe of that State is so
deter- mined to be entitled to all the privileges and rights under the
Constitution in that State would be the most correct way of reading, consistent
with the language, purpose and scheme of the Constitution. Otherwise, one has
to bear in mind that if reservations to those who are treated as Scheduled
Caste or Tribe in Andhra Pradesh are also given to a boy or a girl who migrates
and gets deducted in the State of Maharashtra or other States where that caste
or tribe is not treated as Scheduled Caste or Scheduled Tribe then either
reservation will have the effect of depriving the percentage to the member of
that caste or tribe in Maharashtra who would be entitled to protection or it
would denude the other non- Scheduled Castes or non-Scheduled Tribes in Maharashtra
to the proportion that they are entitled to. This cannot be logical or correct
result designed by the Constitution.
856 In
the case of Pradeep Jain v. Union of India, (supra), this Court held that a
wholesale reservation of seats on the basis of residence requirement within the
State or institu- tional preference would be violative of Article 14. Equally
it is argued that a construction of Article 342 which com- pletely prevents a
Scheduled Tribe candidate of Andhra Pradesh from getting a medical seat in Maharashtra under the Schedule Tribe quota
would be violative of Article 14. It would not be so, because a Scheduled Tribe
candidate of Andhra Pradesh will be entitled to all the benefits in medical
colleges of the State of Maharashtra. It was argued that under articles
19(1)(d), (e) and (f), if a parent wishes to keep his child with him, the
opposite view would necessarily mean that he must remain confined to his home
State, disregarding all suitable job opportunities commensu- rate with his
education, experience and talent. We are unable to accept this submission.
These are not additional protection, i.e., he can only enjoy the protection of
the Scheduled Caste or Scheduled Tribe but he cannot enjoy the protection of
non-Scheduled Tribes or Castes in addition to the existing fundamental rights.
It is
further submitted that the view canvassed on behalf of the petitioner finds
support in Durga Das Basu's Commentary on the Constitution of India, 6th
Edition, Vol. N--page 149, where it is stated as follows:
"'In
relation to that State'. 1. A caste which is specified as a Scheduled Caste in
a particular State may not deserve to be so specified in another State. But
when a caste is specified in the President's Order in relation to a particu- lar
State, it does not mean that a person belonging to that caste should be
considered to be the member of a S.C. only for that State alone. Once a caste
is included in the Sched- uled Castes Order, that would be for purposes of the Consti-
tution." It was submitted on the basis of the decision of this Court in Pradeep
Jain's case (supra) that the residence requirement of 15 years in order to be
eligible for admis- sion to medical colleges in Maharashtra is wholly
arbitrary, unreasonable and hence violative of Article 14 of the Con- stitution.
Our attention was drawn to the decisions of this Court in D.P. Joshi v. The
State of Madhya Bharat & Anr., [1955] 1 SCR 12 15 and Minor P. Rajendra v.
State of Madras & Ors., [1968] 2 SCR 786 on the question of residence quali-
fication. In the view we have taken and in the context of the controversy in
the instant case, we are 857 of the opinion that this question will not be
relevant.
We
have heard learned Attorney General of India and he has drawn our attention to
the policy followed by the Gov- ernment of India for the Scheduled Castes and Scheduled Tribes. The policy seems to be
as under:
"I.
Scheduled Castes and Scheduled Tribes are entitled to derive benefits of the
All India Services or admissions in the educational institutions
controlled/administered by the Central Government, irrespective of the State to
which they belong. The reservation in force in favour of the Scheduled Castes
and Scheduled Tribes in filling vacancies in posts and services under the
Government of India are as in the enclosure (Chapter II of the Brochure on the
Reservation for Scheduled Castes and Scheduled Tribes in Services issued by the
Government of India). The reservations for Scheduled Castes and Scheduled
Tribes in the All India Services are covered by these provisions and at present
are 15% and 7.5% respectively. The Central Government/Government services
include the All India Services i.e. the Indian Administra- tive Service, the
Indian Police Service, the Forest Service, etc.
II.
The direct recruitment in respect of the All India Services is made on all India basis and the Scheduled Caste and
Scheduled Tribe Candidates recruited at the indicated percentages of 15 and 7.5
respectively, are allotted to the States. The quota or the number of officers
to be allotted to each State is decided in advance, taking into considera- tion
the cadre gap and the impending retirement in the direct recruitment quota. For
example, if a State has 12 direct vacancies, 22.5% of that would be 2.70. In
that case, 2.70 would be rounded off to 3 and to that State cadre 3 officers
belonging to the reserved category would be allot- ted." This, however,
does not affect the present controversy.
We
also had the advantage of heating the Advocate General of Maharashtra-Mr. A.S. Bobde.
Mr. Raju Ramachandran learned advocate for the petitioner urged before us to
take holistic view of the Constitution. Indeed, he is fight that a holis- tic
approach to the different provisions of the Constitution should be taken.
858
Having regard, however, to the purpose and the scheme of the Constitution which
would be just and fair to the Sched- uled Castes and Scheduled Tribes, not only
of one State of origin but other states also where the Scheduled Castes or
tribes migrate in consonance with the rights of other castes or community,
fights should be harmoniously balanced. Reser- vations should and must be
adopted to advance the prospects of weaker sections of society, but while doing
so care should be taken not to exclude the legitimate expectations of the other
segments of the community.
We
have reached the aforesaid conclusion on the inter- pretation of the relevant
provisions. In this connection, it may not be inappropriate to refer to the
views of Dr. B.R. Ambedkar as to the prospects of the problem that might arise,
who stated in the Constituent Assembly Debates in reply to the question which
was raised by Mr. Jai Pal Singh ("Safeguards for Scheduled Caste and
Tribes-Founding Fa- ther's view" by H.S. Saksena, at p. 60) which are to
the following effect:
"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 o/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 jurisdic- tion 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 practically impossible
to enforce the provisions that apply to tribal areas or scheduled areas, in
areas other than those which are covered by them ..... " In that view of
the matter, we are of the opinion that the petitioner is not entitled to be
admitted to the medical college on the basis of Scheduled Tribe Certificate in Maharashtra. In the view we 859 have taken, the
question of petitioner's right to be admit- ted as being domicile does not fall
for consideration.
Having
construed the provisions of Article 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 stu- dents
who get the protection of being classed as scheduled caste or scheduled tribes
in 'the States of origin when, because of transfer or movement of their father
or guard- ian's business or service, they move to other States as a matter of
voluntary 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 other is involuntary, by force of circumstances
either of employment or of profes- sion, 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 States or areas, any facility
or protection for continuance of study or admission can be given to one who has
so migrat- ed then some consideration is desirable to be made on that ground.
It would, therefore, be necessary and perhaps de- sirable 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 legislatures or the Parliament
may appropriately take into consideration.
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 admit- ted. 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 appli- cation,
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 bene- fit to scheduled castes or
scheduled tribes in Maharashtra or for that matter on anybody else. It is,
therefore, de- sirable that the question whether he is genuinely 860 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 admis-
sion or continuance of study can be given in the Medical College in Maharashtra
to the petitioner herein, the author- ities incharge of the Institution should
consider the same and if on that considering they find it justified in allow- ing
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 educa-
tion, 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.
We,
therefore, direct that the petitioner is not enti- tled 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 depend upon the consid- eration
indicated hereinbefore. The writ petition is thus disposed of. There will be no
order as to costs.
R.N.J.
Petition dis- posed of.
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