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CASE NO.: Appeal (civil)  6120 of 2000

PETITIONER: U.P. Public Service Commission, Allahabad        

RESPONDENT: Sanjay Kumar Singh                                        

DATE OF JUDGMENT: 11/08/2003

BENCH: S. RAJENDRA BABU & P. VENKATARAMA REDDI.

JUDGMENT:

JUDGMENT

With

CIVIL APPEAL NOâ\200¦â\200¦..OF 2003

(Arising out of Special Leave Petition (Civil) No. 16466 of 2001)

State of U.P.                                           â\200¦ Appellant

Versus

Sanjay Kumar Singh                                      â\200¦ 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:

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"â\200¦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.Pâ\200¦"

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  in the State of Maharashtra Vs. Union of India [(1994) 5 SCC 244].  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: â\200¦"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."â\200¦

After referring to another decision of the Constitution Bench in  Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College  [(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

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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."â\200¦

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  ’Naga’ in U.P. State.  In Marri Chandra Shekhar Rao Vs. Dean, Seth  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  Corporation of Delhi Vs. Veena [(2001) 6 SCC 571], though it was a  case of OBCs.  Suffice it to quote the following passage occurring in  that judgment. â\200¦" 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."â\200¦(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: â\200¦"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

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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.