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PETITIONER: ACTION COMMITTEE

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT18/07/1994

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SAWANT, P.B. PUNCHHI, M.M. YOGESHWAR DAYAL (J) SINGH N.P. (J)

CITATION:  1994 SCC  (5) 244        JT 1994 (4)   423  1994 SCALE  (3)358

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by AHMADI,  J.-  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?  is the neat question raised  in  this  petition brought  under  Article 32 of the Constitution by  one  Shri Devidas Kuberdas Kantharia in his personal capacity as ’well as  in  his  capacity  as  the  Chairman  of  Petitioner   1 Committee.   The  grievance sought to be projected  in  this petition,  which  has  been  brought  in  a   representative capacity and by way of a Public Interest Litigation, is that State  B  denies the benefits and privileges  admissible  to such  persons  belonging to Scheduled Castes  and  Scheduled Tribes  who have migrated from State A or any  other  State. Before  we set out the specific nature of the  grievance  it may  be  advantageous  to refer to  the  provisions  in  the Constitution which have a bearing on the question at issue. 2.   In  Part  XVI of the  Constitution  special  provisions relating  to certain classes including Scheduled Castes  and Scheduled  Tribes  have  been made.  Articles  330  and  332 provide  for reservation of seats for Scheduled  Castes  and Scheduled  Tribes  in  the House of the People  and  in  the Legislative  Assemblies of the States.  Article 335  enjoins that  claims of Scheduled Castes and Scheduled Tribes  shall be  taken into consideration in making all  appointments  to services  and  posts in connection with the affairs  of  the

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Union  or  of  a  State.   Article  338  provides  for   the appointment  of a Special Officer for Scheduled  Castes  and Scheduled Tribes to investigate all matters relating to  the safeguards provided for them and to report to the  President upon  the working of those safeguards.  Then  come  Articles 341 and 342 which may be reproduced at this stage :               "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 notification, 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.               342.  Scheduled Tribes.- (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               notification, specify the tribes or tribal               247               communities  or  parts  of  or  groups  within               tribes  or tribal communities 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." Clause (2) of Article 341 empowers Parliament to include  or exclude  by  law  from  the  list  of  Scheduled  Castes  or Scheduled Tribes specified in the notification issued  under clause  (1)  any caste, race or tribe or part  of  or  group within any caste, race or tribe.  Similar provision is to be found in clause (2) of Article 342 in relation to any  tribe or  tribal  community, etc.  Both these  provisions  further state  that  save as aforesaid a notification  issued  under clause (1) of the respective articles shall not be varied by any subsequent notification. 3.   On  a plain reading of clause (1) of Articles  341  and 342  it  is  manifest that the power  of  the  President  is limited to specifying the castes or tribes which shall,  for the purposes of the Constitution, be deemed to be  Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory,  as  the  case may be.  Once  a  notification  is issued  under  clause  (1) of Articles 341 and  342  of  the Constitution,  Parliament can by law include in  or  exclude from  the  list  of Scheduled Castes  or  Scheduled  Tribes, specified  in the notification, any caste or tribe but  save for  that  limited  purpose the  notification  issued  under clause   (1),  shall  not  be  varied  by   any   subsequent notification.   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. These  are  the relevant provisions with which we  shall  be concerned  while  dealing with the grievance  made  in  this petition. 4.   The petitioners herein are aggrieved because the  State of  Maharashtra  has  denied  the  benefits  and  privileges available to Scheduled Castes and Scheduled Tribes specified in relation to that State to members of the Scheduled Castes and  Scheduled  Tribes belonging to other  States  who  have migrated  from  other States to the  State  of  Maharashtra. These  benefits  and privileges are denied on the  basis  of certain  circulars and letters issued by the  Government  of

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India and consequential instructions issued by the State  of Maharashtra   indicating  that  members  belonging  to   the Scheduled Castes and Scheduled Tribes specified in  relation to any other State shall not be entitled to the benefits and privileges  accorded by The State of Maharashtra unless  the person concerned is shown to be a permanent resident of  the State  of Maharashtra on 10-8-1950 in the case of  Scheduled Castes and 6-9-1950 in the case of Scheduled Tribes.   These are  the dates on which the President first promulgated  the Constitution   (Scheduled  Castes)  Order,  1950   and   the Constitution   (Scheduled   Tribes)   Order,   1950.     The petitioners,  therefore,  contend  that the  denial  of  the benefits  and the privileges by the State of Maharashtra  is violative of the fundamental rights conferred on citizens by Articles  14,  15(1),  16(2) and  19  of  the  Constitution, besides being contrary to the letter and spirit of  Articles 341 and 342 of the Constitution.  The 248 petitioners contend that a bare perusal of the  Constitution (Scheduled   Castes)  Order,  1950  and   the   Constitution (Scheduled  Tribes) Order, 1950 as amended by the  Scheduled Castes  and  Scheduled Tribes Orders (Amendment)  Act,  1976 would  show the same castes and tribes specified in  respect of  more than one State.  Those belonging to  the  Scheduled Castes  and  the  Scheduled Tribes,  wherever  situate,  are economically  backward.   Besides on account of  social  and economic  backwardness  they  have  to  suffer  a  host   of indignities  and atrocities and are very often compelled  to migrate from one State to another in search of livelihood or to  escape the wrath of their oppressors.  Earlier they  did not  experience  any  difficulty  in  obtaining  caste/tribe certificates  to secure benefits available to the  Scheduled Castes  and  Scheduled Tribes in the State  of  Maharashtra. The  situation,  however,  changed  drastically  after   the Government  of  India issued a  communication  addressed  to Chief Secretaries to all State Governments/Union Territories on 22-3-1977. 5.   Before  we refer to the contents of  the  communication dated  22-3-1977  it  may  be  advantageous  to  notice  the relevant  provisions of the Constitution (Scheduled  Castes) Order,  1950 and the Constitution (Scheduled Tribes)  Order, 1950 made in exercise of powers conferred by Article  341(1) and Article 342(1) respectively of the Constitution.  In the Order first mentioned clause (2) provides as under:               "2.  Subject to the provisions of this  Order,               the  castes, races or tribes or parts  of,  or               groups  within, castes or tribes specified  in               Parts  1  to (XXII) of the  Schedule  to  this               Order  shall,  in relation to  the  States  to               which  those  Parts  respectively  relate,  be               deemed  to  be  Scheduled  Castes  so  far  as               regards   member  thereof  resident   in   the               localities  specified in relation to  them  in               those Parts of the Schedule."               Clause (2) of the second mentioned Order reads               as under:               "2. The tribes or tribal communities, or  part               of,   or  groups  within,  tribes  or   tribal               communities,  specified in Parts 1 to  XIX  of               the Schedule to this Order shall, in  relation               to the State to which those Parts respectively               relate,  be deemed to be Scheduled  Tribes  so               far  as regards members thereof  residents  in               the  localities specified in relation to  them               respectively in those Parts of that Schedule."

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6.   The Government of India in the Ministry of Home Affairs noticed   that  certificates  belonging  to   a   particular Scheduled Caste/Scheduled Tribe were not issued strictly  in accordance  with the principles governing the issue of  such certificates presumably on account of lack of  understanding of  the  legal position regarding the concept  of  the  term "residence" on the part of the authorities concerned.   With a view to clarifying the legal position the communication of 22-3-1977  came  to be issued.  The relevant  part  of  that communication may be reproduced for ready reference :               "As required under Articles 341 and 342 of the               Constitution, the President has, with  respect               to  every State and Union Territory and  where               it  is  State  after  consultation  with   the               Governor of the concerned State,               249               issued  orders  notifying various  Castes  and               Tribes  as  Scheduled  Castes  and   Scheduled               Tribes  in  relation to that  State  or  Union               Territory from time to time.  The  inter-State               area   restrictions  have  been   deliberately               imposed  so that the people belonging  to  the               specific  community  residing  in  a  specific               area,  which has been assessed to qualify  for               the Scheduled Caste or Scheduled Tribe status,               only benefit from the facilities provided  for               them.  Since the people belonging to the  same               caste  but  living  in  different  State/Union               Territories may not both be treated to  belong               to Scheduled Caste/Tribe or vice versa.   Thus               the  residence  of a particular  person  in  a               particular   locality   assumes   a    special               significance.   This residence has not  to  be               understood in the liberal or ordinary sense of               the  word.  On the other hand it connotes  the               permanent residence of a person on the date of               the  notification  of the  Presidential  Order               scheduling his caste/tribe in relation to that               locality.   Thus a person who  is  temporarily               away from his permanent place or abode at  the               time  of the notification of the  Presidential               Order applicable in his case, say for example,               to earn a living or seek education, etc.,  can               also  be  regarded as a Scheduled Caste  or  a               Scheduled  Tribe, as the case may be,  if  his               caste/tribe  has been specified in that  order               in relation to his State/Union Territory.  But               he  cannot be treated as such in  relation  to               the   place   of   his   temporary   residence               notwithstanding the fact that the name of  his               caste/tribe  has been scheduled in respect  of               that area in any Presidential Order." The  communication  further  states  that  with  a  view  to ensuring the veracity of permanent residence of a person and that  of the caste/tribe to which he claims to  belong,  the Government of India made a special provision in the pro form a  prescribed for the issue of such certificates.  In  order to ensure that competent authorities should alone issue such certificates   the  Government  of  India   (Department   of Personnel and Administrative Reforms) by a letter dated 6-8- 1975  indicated  the authorities  locality-wise  who  should issue the certificates.  The communication then proceeds  to add :               "Thus  the Revenue Authority of  one  District               would  not  be  competent  to  issue  such   a

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             certificate in respect of persons belonging to               another  District.  Nor can such an  authority               of   one  State/Union  Territory  issue   such               certificates in respect of persons whose place               of  permanent  residence at the  time  of  the               notification   of  a  particular   Residential               Order,  has  been in a  different  State/Union               Territory." This was emphasised because only the revenue authorities  of the  locality of which the individual is the resident  alone would have access to revenue records to be in a position  to make   reliable  enquiries  before  the  issuance   of   the certificate.   In regard to persons born after the  date  of the  notification  of the relevant Presidential  Order,  the communication  states  that the place of residency  for  the purpose  of  acquiring Scheduled Caste  or  Scheduled  Tribe certificate is the place of permanent abode of their parents at  the time of the notification of the  Presidential  Order under which they claim to belong to such a caste/tribe. 250 7.   Subsequent to the issuance of the said communication by the  Government  of India, the  Commissioner  for  Scheduled Castes  and  Scheduled  Tribes  submitted  his  22nd  Report wherein he pointed out that instances had come to his notice where  false  certificates were  produced  by  non-Scheduled Caste/Scheduled  Tribe persons to secure government  service or  admission  to  educational  institutions.   The   report disclosed  that such certificates were being issued  without the  authority  issuing the same being even aware  of  basic requirements necessary for such certificates.  On the  basis of  the recommendations made by the Commissioner and  having regard to the procedure adopted by the State of West  Bengal which was commended for acceptance by the Commissioner,  the Government  of Maharashtra, in modification of the  existing orders  directed  that  caste  certificates  issued  by  the Special  Executive  Magistrates  should  be  treated  as   ‘ preliminary  certificates’ and final certificates should  be issued  only by the Executive Magistrate authorised  by  the District  Magistrate in that behalf.  It was  also  directed that  Special Executive Magistrates should certify only  the castes  to which they themselves belonged.   The  Government states  that if despite these instructions  incorrect  caste certificates  are issued, a serious view will be taken.   In the  instructions appended to the said Government  Order  it was, inter alia, stated in paragraphs 13 and 19 as under :               "13.  Caste Certificates should be issued only               to  those who have ordinary residence  of  the               place within the jurisdiction of the competent               authority.  Ordinary residence means residence               which  is  not  for the  purpose  of  service,               employment,  education, confinement  in  jail,               etc.   In short, it means permanent  residence               and not a temporary residence.               19.   Where  a person migrates from one  State               to  another,  he  can claim  to  belong  to  a               Scheduled  Caste or a Scheduled Tribe only  in               relation  to  the  State  from  which  he  has               migrated.  The competent authority should not,               therefore,  issue  a caste  certificate  to  a               person   from  other  State,  whether  he   is               ordinary (sic) residing in this State or not." By  the  subsequent  letter of  12-2-1981,  it  was  further clarified that in order to become eligible for being treated to  be a member of Scheduled Caste/Tribe in relation to  the State of Maharashtra a person should be a permanent resident

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of the State of Maharashtra before 10-8-1950, and  6-9-1950, respectively,   the  dates  of  the  notifications  of   the respective  Presidential  Orders  of  1950  scheduling   the castes/tribes  in  relation  to the  State  of  Maharashtra. Since there was no State of Maharashtra in 1950 it would  be reasonable  to understand it to mean the  geographical  area now  forming part of the State of Maharashtra.  At the  foot of the pro form a of the certificate the following note  was appended: "Note : The term ’ordinarily reside(s)’ used here will  have same  meaning as in Section 20 of the Representation of  the People  Act, 1950." Section 20 of the Representation of  the People Act, 1950, reads as under: 251 "20.  Meaning of ’ordinarily resident’.- (1) A person  shall not  be deemed to be ordinary resident in a constituency  on the  ground  only that he owns, or is in  possession  of,  a dwelling house therein. (1A)  A person absenting himself temporarily from his  place of  ordinary residence shall not by reason thereof cease  to be ordinarily resident therein. (1B) A member of Parliament or of the Legislature of a State shall  not  during  the  term of  his  office  cease  to  be ordinarily  resident  in the constituency in  the  electoral roll of which he is registered as an elector at the time  of his  election as such member, by reason of his absence  from that  constituency  in connection with his  duties  as  such member. (2)  A  person  who  is  a  patient  in  any   establishment maintained wholly or mainly for the reception and  treatment of   persons  suffering  from  mental  illness   or   mental defectiveness,  or who is detained in prison or other  legal custody at any place, shall not by reason thereof be  deemed to be ordinarily resident therein. (3)  Any  person  having a service  qualification  shall  be deemed  to  be  ordinarily  resident  on  any  date  in  the constituency  in  which,  but for his  having  such  service qualification,  he  would have been ordinarily  resident  on that date. (4)  Any person holding any office in India declared by  the President in consultation with the Election Commission to be an office to which the provisions of this sub-section apply, shall be deemed to be ordinarily resident on any date in the constituency  in  which,  but for the holding  of  any  such office, he would have been ordinarily resident on that date. (5)  The  statement of any such person as is referred to  in sub-section (3)     or   sub-section   (4)   made   in   the prescribed form and verified in the prescribed manner,  that but for his having the service qualifications or but for his holding any such office as is referred to in sub-section (4) he would have been ordinarily resident in a specified  place on  any  date,  shall, in the absence  of  evidence  to  the contrary, be accepted as correct. (6)  The wife of any such person as is referred to  in  sub- section  (3) or sub-section (4) shall, if she be  ordinarily residing  with  such  person  be  deemed  to  be  ordinarily resident in the constituency specified by such person  under sub-section (5). (7)  If  in any case a question arises as to where a  person is  ordinarily resident at any relevant time,  the  question shall be determined with   reference to all the facts of the case and to such rules as may be made in this behalf by  the Central   Government  in  consultation  with  the   Election Commission.               (8)   In  sub-sections  (3) and  (5)  ’service

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             qualification’ means-               (a) being a member of the armed forces of  the               Union; or               252               (b)   being  a member of a force to which  the               provisions of the Army Act, 1950 (46 of 1950),               have  been  made applicable  whether  with  or               without modifications; or               (c)   being a member of an armed police  force               of a State, who is serving outside that State;               or               (d)   being a person who is employed under the               Government of India, in a post outside India." 8.   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 experienced by them the earlier  instructions contained in the letter of  22-3-1977, and  the subsequent letter of 29-3-1982, were  modified,  in that,  the prescribed authority of a  State/Union  Territory was  permitted to issue the Scheduled Caste/Scheduled  Tribe 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

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             253               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." 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 22-3-1977, 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. 9.   The  petitioners  contend  that having  regard  to  the difficulty experienced by persons belonging to the Scheduled Castes/Scheduled Tribes, both in the State of origin and  in the State to which they migrated, they were obliged to  move the High Court for seeking an appropriate writ or  direction on the plea that the cut-off date was arbitrarily fixed  and was  therefore violative of Articles 14 and 19 and  Articles 341 and 342 of the Constitution.  Reference has been made by the  petitioners to four judgments delivered by  the  Bombay High Court (i) Bhiwaji Eknath Kawle v. State of Maharashtra’ decided  by  the Aurangabad Bench of the Bombay  High  Court comprising  Kanade  and  Deshpande, JJ.  on  3-2-1982,  (it) Rajesh Khusalbhai Patel v. State of Maharashtra2 decided  by the Bombay High Court, Pendse, J. on 19-9-1984, (iii) Rajesh Arjunbhai  Patel  v. State of Maharashtra3  decided  by  the Bombay  High Court, Daud, J. on 31-7-1989 and  (iv)  Kannaya Devjibhai  Borisa  v. State of Maharashtra4 decided  by  the Division  Bench  of Bombay High Court, Mookerjee,  C.J.  and Sharad Manohar, J., dated 28-9-1989, granting reliefs to the petitioners.   The petitioners contend that  notwithstanding the pronouncements of the Bombay High Court in the aforesaid writ   petitions   persons  belonging   to   the   Scheduled Castes/Scheduled Tribes continue to experience  difficulties in securing certificates from the State of origin as well as the  State  to  which they had migrated on  account  of  the instructions issued by the Government of India as  contained in  the  communication dated 22-3-1977  and  the  subsequent communications  referred to earlier.  The petitioners  have, therefore,  moved  this  Court  so  that  an   authoritative pronouncement of this Court may introduce a uniform  pattern in  regard  to the issuance of certificates to  the  persons belonging  to the Scheduled Castes/Scheduled Tribes  without being  compelled  to knock at the doors  of  different  High Courts. 1    W.P. No. 1572 of 1980, decided on 3-2-1982 (Bom HC) 2    W.P. No. 2499 of 1983, decided on 19-9-1984 (Bom 3    AIR 1990 Bom 114:1990 Mah LJ 55 4    AIR 1990 Bom 394: (1990) 1 Bom CR 546 254 10.  In  the  counter  filed  on  behalf  of  the  State  of Maharashtra,  it  is contended that the question  raised  in this   petition   has  been  conclusively  answered   by   a Constitution  Bench of this Court in Marri  Chandra  Shekhar Rao  v.  Dean, Seth G.S. Medical College5, and as  such  the

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petition  is liable to be dismissed.  Without  prejudice  to this  preliminary  contention, it is pointed  out  that  the expression  "in relation to that State" read with the  words "for the purposes of this Constitution" in Articles 341  and 342 leave no manner of doubt that the specification made  is "in  relation to that State" for which it is made  i.e.  the State  of  origin  and  not that State  to  which  a  person migrates.   That is because the concept of  backwardness  in Articles  15 and 16 is a relative one varying from  area  to area and region to region and hence it is not permissible to generalise any caste or any tribe as a Scheduled Caste or as a Scheduled Tribe for the whole of the country.   Therefore, a person belonging to a Scheduled Caste or a Scheduled Tribe in  relation to a State would require  necessary  protection and  benefits in that State to bring about equality but  the social environment of the State to which he migrates may not be  the same as in the State of his origin and therefore  he cannot  claim  the  benefits  and  privileges  available  to Scheduled Castes and Scheduled Tribes in the State to  which he  migrates.  Therefore, the contention of the  petitioners that on migration the caste or tribe of the person concerned does   not  change  and  if  such  person  is   denied   the concessions, benefits and privileges available to  Scheduled Castes  and  Scheduled  Tribes  in the  State  to  which  he migrates, such a denial would be in violation of Article  14 of  the  Constitution, in that, the right  to  equality  and equal  treatment would be denied, cannot be sustained.   For the  very same reason, the challenge to  the  communications and  circulars  issued by the Government of  India  and  the Government   of  Maharashtra  is  without  merit.   It   is, therefore, contended by the deponent that there is no  merit in this petition and the same should be dismissed. 11.  Unfortunately, even though the main challenge is to the communications/circulars issued by the Government of  India, no  counter has been filed on behalf of the Union  of  India even though considerable time has elapsed since the issuance of  notice  on 17-8-1990.  Even on  12-2-1991,  the  learned counsel for the Union of India reported that he had not been able  to obtain instructions from the Ministry concerned  as to the stand that the Union of India may like to take on the question  raised  in this petition.  On  that  occasion,  we stated that we consider it necessary that the Union of India should  clarify  its  stand so that the  Court  may  receive assistance  from the learned counsel representing the  Union of  India  to enable it to effectively  resolve  the  issue. Reluctantly,  this  Court extended the time by  another  two weeks to enable it to do so.  The Secretary to the  Ministry of  Welfare was also directed to take appropriate  steps  to ensure  the filing of a counter clarifying the stand of  the Union of India before the next date of hearing, namely, 5-3- 1991.   A  copy of the order was sent to  the  Secretary  to enable him to pursue the matter and ensure that the counter- affidavit was filed 5 (1990) 3 SCC 130: (1990) 14 ATC 671: 1990 Supp (1) Scale 7 255 before the next date.  Unfortunately, despite the indulgence given by this Court, no counter-affidavit has been filed  on behalf of the Union of India.  What a sorry state of affairs that  even  after  the highest officer in  the  Ministry  is sounded  the lethargy continues.  So we have to  decide  the issue without a counter  from the Central Government. 12.  The petition came up for final disposal before a  Bench of three learned    Judges  of  this  Court  on   12-3-1991. Having  heard arguments for three days, the  learned  Judges passed the following order on 15-3-1991:

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             "We  have heard these matters at  some  length               but  we have come to the conclusion  that  the               problem raised in these petitions is likely to               affect  various fundamental  issues  regarding               the   recognition  of  Scheduled  Castes   and               Scheduled Tribes under Articles 341 and 342 of               the   Constitution,  read  with   Presidential               Orders in this context.  In our opinion, these               are appropriate matters to be placed before  a               Constitution Bench of this Court.  The  papers               may  be  placed before the Chief  Justice  for               necessary directions in this behalf." That is how the matter came up for final disposal before us. 13.  We may incidentally mention that an Interim Application No.  1 of 1990 was taken out for permission to proceed in  a representative  capacity.   An  order  was  passed  on  that application   on   17-8-1990  directing  notice   to   issue returnable on 3-10-1990. 14.  It  is  a matter of common knowledge  that  before  and during  the British rule also the social order in India  was of  graded inequality.  During the freedom struggle some  of our  leaders  strived to bring about social  integration  to give  a  fillip to the independence movement.  The  need  to bring about equality was strongly felt.  After  independence when  the  Constitution  was being framed  for  free  India, considerable  emphasis  was  laid  on  the  need  to  secure equality.   The  debates of the  Constituent  Assembly  bear testimony   to  this  felt  need.   The  Preamble   of   our Constitution, which is aptly described as the conscience  of our  Constitution,  promises  to  secure  to  all   citizens "equality of status and of opportunity".  In the Chapter  on Fundamental Rights, Article 14 emphatically states that  the State  shall not deny to any person equality before the  law or the equal protection of the laws within the territory  of India.  But then the Constitution-makers were also aware  of the  prevailing  inequality in the social structure  of  the country  and,  therefore,  felt the  need  to  correct  this imbalance  through  appropriate provisions.   While  Article 15(1)  in unmistakable terms provides that the  State  shall not  discriminate  against any citizen on  grounds  only  of religion,  caste, race, sex, place of birth or any of  them, Article  15(4) says that nothing in the foregoing  paragraph of the said article 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.  So also  Article 16(1) posits that there shall be equality of opportunity for all   citizens   in  matters  relating  to   employment   or appointment  to  any office under the State and  clause  (2) thereof adds that no citizen shall, on grounds 256 of  religion, race, caste, sex, descent or place  of  birth, residence or any of them, be ineligible for or discriminated against  in  respect of any employment or office  under  the State.   But  then clause (4) of Article  16  provides  that nothing  in the foregoing part of the article shall  prevent the  State from making any provision for the reservation  of appointments  or  posts in favour of any backward  class  of citizens  which,  in  the  opinion  of  the  State,  is  not adequately represented in services under the State.  Article 19,  insofar  as  is  relevant  for  the  purposes  of  this petition,  states that all citizens shall have the right  to move freely throughout the territory of India and to  reside and  settle  in  any part of the territory  of  India.   The submission  of  the learned counsel for the  petitioner  was

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that  since  Article  19 confers a right  of  free  movement throughout the territory of India and a right to reside  and settle  in  any  part of the  territory  of  India,  persons belonging to the Scheduled Castes and Scheduled Tribes  have a right to move from one State to another without  hindrance and  to reside and settle in any other State.  There can  be no  doubt  that  this is a  fundamental  right  and  members belonging to the Scheduled Castes/Scheduled Tribes specified in one State have a right to free movement to another  State and  to  reside  and settle in the other State  if  they  so desire.   As  stated earlier certain  privileges  have  been conferred  on members belonging to the Scheduled Castes  and Scheduled  Tribes in Part XVI of the  Constitution,  namely, Articles  330,  332, 335 and 336 which we have  referred  to earlier.   But as pointed out earlier on a plain reading  of clause (1) of both Articles 341 and 342, extracted  earlier, it  becomes  obvious  that the power  of  the  President  is limited  to specifying the castes/tribes which  shall,  "for the  purposes of Constitution?’, be deemed to  be  Scheduled Castes  or  Scheduled Tribes "in relation to a  State  or  a Union  Territory", as the case may.  The contention  of  the learned  counsel  for  the petitioners was  that  the  legal position  explained  in the communication of  22-3-1977  and subsequent communications flowing therefrom and referred  to earlier  was  not consistent with the language  of  Articles 341(1)  and 342(2) and was even otherwise violative  of  the concept of equality enshrined in Articles 14, 15, 16 and  19 of  the Constitution.  The learned counsel  further  pointed out that the decisions of the Bombay High Court referred  to in  the earlier part of this judgment and the  decisions  of the Gujarat High Court in Manju Singh v. Dean, B.J.  Medical College6  and State of Gujarat v. R.L. Patel as well as  the decision  of the Karnataka High Court in P.M. Muni Reddy  v. Karnataka  Public Service Commission8 should be approved  as they  have-rightly held that the words "for the purposes  of this Constitution" should not be read as subservient to  the words  "in relation to that State".  If so  interpreted  the view   expressed   by  the  Government  of  India   in   the communication dated 22-3-1977 would be wholly erroneous  and in violation of the fundamental rights referred to  earlier. He,   therefore,  contended  that  since   the   Maharashtra Government  order  of 21-3-1979 follows  the  interpretation placed by the 6 AIR 1986 Guj 175: 1986 Guj LH 483 7 AIR 1992 Guj 42: (1990) 31 Guj LR 1163 8    1981 Lab IC 1345 (Kant) 257 Government  of India in the communication of 22-3-1977,  the former  must  also  be held to suffer on the  same  vice  of constitutional  invalidity  and opposed to  the  spirit  and purpose  of Articles 341 (1) and 342(1).  On the other  hand the   learned  counsel  for  the  Union  of  India,   though handicapped  for want of a counter, and the learned  counsel for  the State of Maharashtra placed strong reliance on  the Constitution Bench decision in Marri Chandra5 and  submitted that  these  very  submissions  were  canvassed  before  the Constitution  Bench  by  Mr  Raju  Ramachandran,  and   were spurned.   If  we agree with the submission of  the  learned counsel for the respondents that the point at issue in  this petition stands covered by the decision of the  Constitution Bench in the aforesaid case nothing further would remain for us  to  decide.   It would, therefore,  be  advantageous  to straightaway refer to the decision in Marri Chandra case5. 15.  Marri Chandra was born in Tenali in the State of Andhra Pradesh and belonged to Gouda community, popularly known  as

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’Goudi’.  This community was specified as a Scheduled  Tribe in  the  Constitution  (Scheduled  Tribes)  Order,  1950  as amended  till  then.  His father had  obtained  a  Scheduled Tribe certificate from the Tehsildar on the basis whereof he secured  employment  in  the quota  reserved  for  Scheduled Tribes  in a Government of India Undertaking and was  posted in  Bombay, State of Maharashtra.  The petitioner  was  then aged about 9 years.  He prosecuted his studies in Bombay and passed the 12th standard examination held by the Maharashtra State  Secondary  and Higher  Secondary  Examination  Board. Thereafter  he  sought admission to  the  respondent-college claiming  benefit  of reservation as one  belonging  to  the Scheduled Tribe.  He was, however, denied admission in  that quota  though  Scheduled Tribe candidates  who  had  secured lesser  marks  than  him  but  whose  State  of  origin  was Maharashtra  were  admitted.  The denial  of  admission  *as based  on  the  circular  dated  22-2-1985  issued  by   the Government  of, India which has already been referred to  by us.   Having  failed  to secure  admission  in  any  medical college   in   the  quota  reserved  for   Scheduled   Tribe candidates, he questioned the denial before this Court under Article 32 of the Constitution.  A Constitution Bench headed by  Sabyasachi Mukharji, C.J., as he then was, examined  the question whether one who is recognised as a Scheduled  Tribe in the State of his origin continues to have the benefits or privileges or rights in the State to which he migrates.   In paragraph  6  of  the  judgment  the  precise  question  was formulated as follows:               "This 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 Caste certificate in  the               State of Andhra Pradesh?" In answering this question the Constitution Bench was called upon  to interpret Articles 341 and 342 of the  Constitution and  determine  what  the expression "in  relation  to  that State"  read in conjunction with "for the purposes  of  this Constitution"  seeks  to  convey.  After  referring  to  the provisions  of  Articles 14, 15 and 16 and the  decision  of this Court in 258 Pradeep Jain (Dr) v. Union of India9 the Constitution  Bench took notice of the fact that Scheduled Castes and  Scheduled Tribes  had to suffer social disadvantages and  were  denied facilities for development and growth in certain States.  To grant equality in those States where they suffered and  were denied   facilities  for  development  and  growth   certain protective preferences, facilities and benefits in the  form of  reservation, etc., had to be provided to them to  enable them  to compete on equal terms with the  more  advantageous and  developed  sections  of  the  community.   It  is   not necessary to dilate on this point as the Constitution itself recognises  that members belonging to the  Scheduled  Castes and  Scheduled Tribes and other backward classes have to  be given  certain incentives, preferences and benefits  to  put them on an even keel with others who have hitherto enjoyed a major  share  of the facilities for development  and  growth offered  by the State, so that the former may, in course  of time, be able to overcome the handicap caused on account  of denial of opportunities.  The interpretation that the  Court must put on the relevant constitutional provisions in regard to  Scheduled  Castes/Scheduled Tribes  and  other  backward classes must be aimed at achieving the objective of equality promised   to   all  citizens  by  the   Preamble   of   our

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Constitution.   At  the same time it must also  be  realised that the language of clause (1) of both the Articles 341 and 342 is quite plain and unambiguous.  It clearly states  that the President may specify the castes or tribes, as the  case may  be, in relation each State or Union Territory  for  the purposes of the Constitution.  It must also be realised that before  specifying the castes or tribes under either of  the two  articles  the  President is, in the case  of  a  State, obliged to consult Governor of that State.  Therefore,  when a class is specified by the President, after consulting  the Governor of State A, it is difficult to understand how  that specification  made  "in  relation to  that  State"  can  be treated  as  specification in relation to  any  other  State whose Governor the President has not consulted.  True it  is that  this specification is not only in relation to a  given State  whose  Governor has been consulted but  is  "for  the purposes  of this Constitution" meaning thereby the  various provisions  of  the Constitution which deal  with  Scheduled Castes/Scheduled Tribes.  The Constitution Bench has,  after referring  to  the  debates  in  the  Constituent   Assembly relating  to these articles, observed that while it is  true that a person does not cease to belong to his caste/tribe by migration he has a better and more socially free and liberal atmosphere  and  if  sufficiently  long  time  is  spent  in socially  advanced.  areas, the  inhibitions  and  handicaps suffered   by  belonging  to  a   socially   disadvantageous community do not truncate his growth and the natural talents of  an individual gets full scope to blossom  and  flourish. Realising  that these are problems of social  adjustment  it was observed that they must be so balanced in the mosaic  of the country’s integrity that no section or community  should cause  detriment or discontentment to the  other  community. Therefore, said the Constitution Bench, the 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 to in order to 9 (1984) 3 SCC 654 259 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 Constitution Bench  summed up as under:               "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  determination  of               the  controversy in the instant case does  not               become difficult." 16.  We  may  add  that  considerations  for  specifying   a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule 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

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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 fights,  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.   That is  why  in  answer to a question by  Mr  Jaipal  Singh,  Dr Ambedkar answered as under:               "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  of               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 jurisdiction 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 practicably impossible to               260               enforce  the provisions that apply  to  tribal               areas or scheduled areas, in areas other  than               those which are covered by them....... Relying on this statement the Constitution Bench ruled  that the petitioner was not entitled to admission to the  medical college  on the basis that he belonged to a Scheduled  Tribe in the State of his origin. 17.  Lastly the Constitution Bench referred to the  cleavage in the views of different High Courts on the  interpretation of  Articles  341  and  342  of  the  Constitution  and  the consequential  orders passed by the Government of India  and the State Governments.  It referred to the two decisions  of the  Gujarat  High  Court as well as  the  decision  of  the Karnataka   High  Court  which  place   the   interpretation canvassed before us by Mr Raju Ramachandran.  The other side referred  to  the decisions of the Orissa High Court  in  K. Appa  Rao v. Director of Posts & Telegraphs,  Orissa10,  the decision of the Full Bench of the Bombay High Court in  M.S. Malathi  v. Commissioner, Nagpur Division" and the  decision of the Punjab & Haryana High Court in V.B. Singh v. State of Punjab12 which take the contrary view canvassed before us by the respondents.  All these decisions were considered by the Constitution  Bench which agreed with the latter  view.   It upheld  the view expressed in the communication dated  22-2- 1985 and negatived the challenge of the petitioner that  the

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said  view was ultra vires Articles 14, 15, 16 or  21.   It, however, observed that in the facts and circumstances of the case  and  having  regard to the fact  that  the  petitioner student’s career was involved it directed the authorities to consider  whether the petitioner was a ’Goudi’ and  if  yes, the  institution  may  consider  if he  can  be  allowed  to complete  his studies in the institution.  However,  on  the interpretation   of   the   relevant   provisions   of   the Constitution  this Court was clear in its view that  legally speaking  he was not entitled to admission in the  Scheduled Tribe quota. 18.  We  are  in respectful agreement with  the  above  view expressed  by  the  Constitution  Bench  in  the   aforesaid decision.  All the points which were canvassed before us  by Mr Raju Ramachandran were also canvassed by him in the  said matter.   They  were negatived by  the  Constitution  Bench. Nothing  has been pointed out to persuade us to  think  that the   view   taken  by  the  Constitution   Bench   requires reconsideration  by  a  larger Bench.  In  fact  we  are  in complete  agreement  with the interpretation placed  on  the various  provisions  of  the  Constitution,  in   particular Articles  341  and 342 thereof, in the said  judgment.   We, therefore,,  see no merit in this writ petition and  dismiss the same.  However, we make no order as to costs. 10 AIR 1969 Ori 220: 35 Cut LT 55 11 AIR 1989 Bom 138: 1988 Mah LJ 1041: (1988) 90 Bom LR  532 (FB) 12 ILR (1976) 1 P&H 769 262