P.S Brahme, J.:— Heard Mr. A.Z Jibhkate, Advocate for the petitioner. Rule returnable forthwith, Mrs. S.W Deshpande, Advocate waives notice on behalf of respondent No. 1 and Mr. S.C Mehadia, Advocate waives notice on behalf of respondent No. 2.

2. By consent, heard the learned counsel for the respective parties.

3. By this petition, the petitioner is questioning the orders dated 16-10-2004 and 8-12-2004 respectively passed by respondent No. 1 - Caste Scrutiny Committee and respondent No. 2 - Maharashtra State Regional Transport Corporation.

4. The petitioner belongs to “Gond” community which is specified as Scheduled Tribe in relation to the Maharashtra State. He was issued Caste Certificate to that effect dated 6-7-1995 by the Competent Authority at Ramtek on the basis of the School Leaving Certificate, Patwari's report and affidavit. The father of the petitioner, who was permanent resident of Chabhata, Tq. Dongargarh, Distt., Rajnandgaon (Madhya Pradesh), shifted and settled at Totladoh since he got employment in the Irrigation Department. The petitioner got education at Mandal and he has selected by respondent No. 2 to the post of Driver (Junior).

5. The documents of the petitioner were forwarded to respondent No. 1 for caste scrutiny. The respondent No. 1 vide the impugned order dated 16-10-2004 rejected the caste claim of the petitioner holding that he is a migrant and further held that the petitioner is not entitled to get concession of “Gond” Scheduled Tribe. On the basis of the said order, respondent No. 2 also cancelled the selection of the petitioner vide the impugned order dated 8-12-2004.

6. We have heard Mr. A.Z Jibhkate, learned counsel for the petitioner, who submitted that the Caste Scrutiny Committee has refused to verify the caste claim of the petitioner holding that the petitioner is a migrant. He further submitted that the issue in question has been decided by the Apex Court in the case of Sudhakar Vithal Kumbhare v. State of Maharashtra, reported in 2004 (4) Mh. L.J 784.

7. We have perused the impugned order passed by respondent No. 1- Caste Scrutiny Committee. The Caste Scrutiny Committee, placing reliance on the instructions issued by the Government of India vide Circular dated 2-5-1975, found that the petitioner being migrant his caste claim cannot be decided by the Caste Scrutiny Committee of the State to which the person is migrated. As per the Circular, when a person migrates from one State to another, he can claim to belong to Scheduled Caste or Scheduled Tribe only in relation to the State to which he originally belonged and not in respect of the State to which he has migrated. It is on that premise that the Caste Scrutiny Committee has come to the conclusion that the petitioner being migrant, he is not entitled to get the concession as Scheduled Tribe of the Maharashtra State.

8. It is crystal clear from the orders afore-mentioned that the Caste Scrutiny Committee has not invalidated the caste claim of the petitioner. But the Caste Scrutiny Committee has found that the petitioner's claim to be belonging to “Gond” Scheduled Tribe cannot be considered by the Committee since the petitioner is migrant to the Maharashtra State.

9. The learned counsel for the petitioner is right in placing reliance on the decision of the Apex Court in Sudhakar Vithal Kumbhare v. State of Maharashtra (supra). In that case, identical question arose for consideration before the High Court. The petitioner, who claimed to be belonging to “Halba” Scheduled Tribe, was promoted against a reserved vacancy. Later on, the petitioner therein was reverted on the ground that he was not entitled for benefit of reservation in the State of Maharashtra. The matter was not referred to the Caste Scrutiny Committee before taking any action of reversion. In that case, the employer issued a show cause notice as to why the petitioner therein should not be reverted from the post of Assistant Engineer as he was not entitled to the benefit of reservation for Scheduled Tribes in the State of Maharashtra as he was migrant from the State of Madhya Pradesh. The petitioner therein challenged the order before the High Court. The High Court, by its judgment dated 23-3-2001, held that as the petitioner came from the State of Madhya Pradesh and though he belonged to “Halba” Tribe, which was recognized as such in the State of Maharashtra, he was not entitled to the benefit of reservation. That is how, the matter came up before the Apex Court. It was contended that the question as to whether the petitioner was entitled to reservation in the State of Maharashtra was required to be referred to the Caste Scrutiny Committee, which had not been done. The Apex Court held that the employer acting upon the directions of the State Government had reverted the petitioner without referring the matter to the Scrutiny Committee, which was not the correct way to deal with the said case. In such a situation, an employer was required to refer the question to the Scrutiny Committee which had been constituted and established for the said purpose.

10. The Apex Court observed “it is no doubt true that a Scheduled Tribe notified in one State may not be given the benefits therefor in another State having regard to the plain expression” in relation to that State “in Article 342 of the Constitution”.

11. The Apex Court, however, further observed in Para 5 of the judgment thus:

“But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and denied facilities for development and growth in several States. They are required protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantageous and developed sections of the Community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in the Chhindwara region, a part of which, on State's reorganization, has come to the State of Maharashtra, was entitled to the benefit of reservation? It is one thing to say that the expression “in relation to that State” occurring in Article 342 of the Constitution of India should be given as effective or proper meaning so as to exclude the possibility that a Tribe has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in other State whose Governor has not been selected; but it is another thing to say that when an area dominated by the members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the State. In other words, the question that is required to be posed and unanswered would be as to whether the members of the Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of States Reorganization Act.”

12. In that case, on facts, the Apex Court found that both Pandhuma in the District of Chhindwara and the part of area of Chandrapur at one point of time belonged to the same region and under the Constitutional Scheduled Tribes Order, 1950 as it originally stood the Tribe Halba/Halbi of that region may be given the same protection. Therefore, the Apex Court observed that in a case of this nature, the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganization might have agreed for inclusion of the said Tribe Halba/Halbi as a Scheduled Tribe in the State of Maharashtra having regard to the said fact in mind.

13. As stated earlier, the Apex Court having considered this factual position, allowed the appeal and the order of reversion was set aside and the employer was directed to refer the matter to the Scrutiny Committee of the State to which he was migrated from his State of origin.

14. So far as the case before hand is concerned, it is not disputed that the petitioner's father, so also the petitioner were originally belonging to the State of Madhya Pradesh being resident of village Charbhata. Tq. Dongargarh, Distt. Rajnandgaon in the State of Madhya Pradesh. The petitioner's father, on account of his employment in the Irrigation Department, was posted at Tatladoh, Tq. Ramtek, Distt. Nagpur in the earlier State. That is how apparently, the petitioner can be stated to be a migrant to State of Maharashtra. But, as has been clarified by the petitioner is his application for amendment of the petition, District Rajnandgaon, to which the petitioner's father belonged, was earlier the part of Central Province and Berar Region and the Nagpur Region was included in the same. Under the Constitutional Scheduled Tribe Order, 1950, Tribe “Gond” was included in the same, when District Rajnandgaon and Nagpur Region were parts of the same Central Province and Berar. Since the Tribe “Gond” of Central Province and Berar was included in the Constitutional Scheduled Tribe Order, 1950, on bifurcation thereof, the member of the Scheduled Tribe belonging to one Region would continue to get the same benefit, despite bifurcation thereof in terms of the States Reorganization Act. In other words, by virtue of Constitutional Scheduled Tribe Order, 1950, the Tribe “Gond” was included in the same in both States prior to the State's Reorganization Act. It is, therefore, crystal clear that, by virtue of the fact that in Constitutional Scheduled Tribe Order, 1952, the Tribe “Gond” has been considered as a Scheduled Tribe in both the States i.e in the State of Maharashtra as well as in the State of Madhya Pradesh, the petitioner is entitled to the status of Scheduled Tribe in the State of Maharashtra. If that is so, then the order passed by the respondent No. 1 - Caste Scrutiny Committee, declining to decide the caste claim of the petitioner cannot sustain. Therefore, the said order is quashed and set aside. Consequently, the impugned order passed by respondent No. 2 - Maharashtra State Regional Transport Corporation dated 8-12-2004 has to be set aside.

15. We, therefore, quash and set aside the order dated 16-10-2004 passed by respondent No. 1 - Caste Scrutiny Committee impugned orders and the order dated 8-12-2004 passed by respondent No. 2 - Maharashtra State Regional Transport Corporation and direct the respondent No. 1 - Caste Scrutiny Committee to decide the caste claim of the petitioner in the light of the observations made by us in the judgment and also by giving an opportunity of hearing to the petitioner and to lead evidence in support of his claim.

16. We further direct the petitioner to appear before the Caste Scrutiny Committee on 30-12-2005 for scrutiny of his caste claim.

17. Respondent No. 1 shall decide the caste claim within a period of one month therefrom.

18. It is needless to say that after the caste claim is decided by respondent No. 1, it was for the respondent No. 2 to consider for appointment of the petitioner for the post to which he is already selected. We, therefore, direct the respondent No. 2 to consider the claim of the petitioner for appointment, in case his caste claim is validated by respondent No. 1.

19. Rule is made absolute in the aforesaid terms.

20. Since we have disposed of the petition finally by consent of the parties, it is not necessary to pass separate order on Civil Application No. 7541 of 2005 for amendment of the petition. Hence, it is disposed of.

Order accordingly.