U.P.
Public Service Commission, Allahabad Vs.
Sanjay Kumar Singh [2003] Insc 369 (11 August 2003)
S. Rajendra
Babu & P. Venkatarama Reddi.
With
CIVIL APPEAL NO
..OF 2003 (Arising out of Special Leave Petition (Civil) No.
16466 of 2001) State of U.P.
Appellant Versus Sanjay Kumar
Singh
Respondent P. Venkatarama Reddi, J.
Delay
condoned and leave granted in S.L.P.(Civil) No. 16466 of 2001 filed by the
State of U.P.
Aggrieved
by the judgment of the High Court at Allahabad, the present appeals are preferred by the U.P. Public Service
Commission and the State of U.P. Pursuant
to an advertisement issued on 31.12.1994 by the U.P. Public Service Commission
for Combined State/Upper Subordinate Examination, the respondent herein
submitted his application as a Scheduled Tribe candidate. He passed the
preliminary and main examination held in June/July, 1996. He was called for
interview for consideration to the post of History Lecturer in the vacancy
reserved for Scheduled Tribes. In the results published on 14.11.1996, the
respondent was declared successful.
However,
it is the case of the Service Commission that on a recheck of the documents
furnished by the respondent, it was found that the Naga tribe to which the
respondent belongs is not a recognised Scheduled Tribe in the State of U.P. In the Presidential order issued under Article 342
of the Constitution as well as the State Government's notification, only five
tribes are mentioned as Scheduled Tribes. Therefore, the appellant-U.P. Public
Service Commission did not send up its recommendation for recruitment of the
respondent. At the same time, on 1.7.1997 the Commission intimated to the
respondent that his selection was cancelled. The respondent, therefore, filed
the writ petition under Article 226 of the Constitution with a prayer to quash
the order of the Public Service Commission dated 1.7.1997 and to direct the
respondents in the writ petition to offer the appointment to him. This writ
petition was allowed by the impugned judgment of the Division Bench of the High
Court.
The
High Court was of the view that there was no bar under any of the provisions to
extend the benefit of reservation to Scheduled Tribe candidates of other
States. The High Court observed:
"
There
is no law and no provision has been brought to the notice of the Court which
will limit the said reservation quota to be extended only to citizen of the
State of U.P
" The High Court directed the
State of U.P. to offer the appointment to the
respondent on the footing that he is a S.T. candidate.
It is
not in dispute that Naga tribe is not specified as one of the Scheduled Tribes
in the State of U.P. The respondent claimed that his
forefathers were residents of Old Ngaulong village of Kohima District in Nagaland
and they initially migrated to Chhapra in Bihar and the father of the
respondent shifted his residence to Allahabad and after rendering service in
the Army, settled down at Allahabad.
The respondent,
pursued his studies in Allahabad. Based on the certificates issued
by the Nagaland authorities, the Tehsildar, Sadar, Chial Tehsil, Allahabad
issued a certificate on 18.1.1996 to the effect that the respondent "has
been accorded recognition as Scheduled Tribe-Naga as per the Scheduled Tribes
Order of 1970 relating to Nagaland".
Thus,
the certificate affirms the fact that respondent is a Naga tribal which is a
notified Scheduled Tribe in the State of Nagaland.
During
the pendency of the writ petition, the genuineness of the certificate issued by
the Nagaland authorities was confirmed through enquires made with the Nagaland
authorities. The question is whether respondent can claim the benefit of
reservation in public service in the State of U.P. as a member of Scheduled Tribe though 'Naga' is not
specified to be a Scheduled Tribe in that State.
It may
be noted that the reservation in favour of Scheduled Tribes to the extent of 2%
is provided for by the U.P. Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and other Backward Classes) Act, 1994. There is no particular
definition of 'Scheduled Tribe' in the Act. However, the term 'Scheduled Tribe'
can only be understood in accordance with the provisions of Article 342 read
with the notifications issued thereunder as interpreted by this Court.
The
question arising in this case is no longer res integra.
Almost
the same question was considered in Action Committee on Issue of Caste
Certificate to Scheduled Castes and Scheduled Tribes The following question
arose for consideration:
"Where
a person belonging to a caste or tribe specified for the purposes of the
Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State
A migrates to State B where a caste or tribe with the same nomenclature is
specified for the purposes of the Constitution to be a Scheduled Caste or a
Scheduled Tribe in relation to that State B, will that person be entitled to
claim the privileges and benefits admissible to persons belonging to the
Scheduled Castes and/or Scheduled Tribes in State B?" The Constitution
Bench answered that question in the negative.
Interpreting
Articles 341 and 342, the Court observed:
"What
is important to notice is that the castes or tribes have to be specified in
relation to a given State or Union Territory. That means a given caste or tribe
can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified."
After referring to
another decision of the Constitution Bench in [(1990) 3 SCC 130], Ahmadi, J.
speaking for the Court observed thus:
"We
may add that considerations for specifying a particular caste or tribe or class
for inclusion in the list of Scheduled Castes/Scheduled Tribes or backward
classes in a given State would depend on the nature and extent of disadvantages
and social hardships suffered by that caste, tribe or class in that State which
may be totally non est in another State to which persons belonging thereto may
migrate. Coincidentally it may be that a caste or tribe bearing the same
nomenclature is specified in two States but the considerations on the basis of
which they have been specified may be totally different. So also the degree of
disadvantages of various elements which constitute the input for specification
may also be totally different. Therefore, merely because a given caste is
specified in State A as a Scheduled Caste does not necessarily mean that if
there be another caste bearing the same nomenclature in another State, the
person belonging to the former would be entitled to the rights, privileges and
benefits admissible to a member of the Scheduled Caste of the latter State
"for the purposes of this Constitution". This is an aspect which has
to be kept in mind and which was very much in the minds of the
Constitution-makers as is evident from the choice of language of Articles 341
and 342 of the Constitution."
The ruling in the above case applies with
greater force to the present case for the reason that it is not the case of the
writ petitioner that there is any caste or tribe bearing the same nomenclature
of G.S. Medical College case, supra, it was pointed out that the
"Scheduled Castes and the Scheduled Tribes belonging to a particular area
of the country must be given protection so long as and to the extent they are
entitled to, in order to become equals with others but those who go to other
areas should ensure that they make way for the disadvantaged and disabled of
that part of the community who suffer from disabilities in those areas."
The same view was taken in a recent decision in Municipal case of OBCs. Suffice
it to quote the following passage occurring in that judgment.
"
The matters that are to be taken into considerationfor specifying a particular
caste in a particular group belonging to OBCs would depend on the nature and
extent of disadvantages and social hardships suffered by that caste or group in
that State. However, it may not be so in another State to which a person
belonging thereto goes by migration. It may also be that a caste belonging to
the same nomenclature is specified in two States but the considerations on the basis
of which they had been specified may be totally different. So the degree of
disadvantages of various elements which constitute the data for specification may
also be entirely different."(per Rajendra Babu, J.) Reliance was placed by
the respondent's counsel on the Government of India, Home Ministry's Circular
dated 25.11.1982 which enables the concerned authorities of the State to which
the Scheduled Tribes migrated, to issue the S.C. and S.T. certificates.
This
Circular and the later clarification were also referred to in Action Committee
case (supra) and the Court observed thus:
"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, 1950, can get benefit from the State of his origin
and not from the State to which he has migrated." * * * * * * It will
thus, be seen that so far as the Government of India is concerned, since the
date of issuance of the communication dated 22.3.1997, 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 contention of the
appellants should therefore be accepted and the appellant cannot be treated as
a Scheduled Tribe candidate so as to qualify himself to claim reservation
against the vacancy reserved for Scheduled Tribe in public services in the
State of U.P.
The
view of the High Court cannot be sustained as it goes counter to the
pronouncements of this Court. Hence it is set aside and the appeals are allowed
without cost. However, in the peculiar circumstances of the case, the ends of
justice would be met if the appellants are directed to consider the case of the
respondent in general category and if in comparison with the general category
candidates selected, the respondent had secured higher marks/grading, he should
be offered appointment to an appropriate post against one of the existing
vacancies.
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