WITH
WRIT PETITION NO. 4730 OF 2008
Shivnath Sitaram Kori )
Aged 22 years, residing at )
6/H/5 Transit Camp, Dharavi, )
Mumbai - 17. )... Petitioner
Versus
1. State of Maharashtra )
through its Secretary, )
Social Justice Department, )
Mantralaya, Mumbai - 32. )
2. Divisional Caste Certificate )
Scrutiny Committee, Mumbai )
Division, through its Member-Secretary, )
having its office at Konkan Bhavan, )
5th floor, CBD, Belapur, Navi Mumbai. )
3. Competent Authority and Director, )
Technical Education, Maharashtra )
State,having its Office, at 3, Mahapalika )
Marg, Dhobi Talao, Mumbai-1. )
4. Yadavrao Tasgaonkar Institute of Pharmacy )
through its Principal, having its office )
at Dr. N.Y. Tasgaonkar Educational Complex)
Chandhai Bhivpuri Road Station, )
Tal. Karjat, Dist. Raigad. )..Respondents
ig WITH
WRIT PETITION NO. 8884 OF 2009
Abhishek Deepak Singh )
Age: 19 years, having permanent )
address at Harihar Singh Compound, )
Pratap Nagar, Jogeshwari (E), )
Mumbai 400 060. ).. Petitioner
V/s.
Mr. Avinash H.Fatangale a/w Mr. S.V.Gavand, Advocates, for the Petitioner
in W.P.No.6060/2008.
Mr. Ravi Kadam, Advocate General a/w Mr. N.P.Deshpande, G.P. For
Respondent Nos.1, 2, 6 & 7.
Mr. R.K.Mendadkar, Advocate for Petitioner (in W.P.No.4730/2008.
Mr. Ravi Kadam, Advocate General a/w Mr. N.P.Deshpande, GP. For
Respondent Nos. 1 to 3.
Mr. V.M. Thorat a/w Ms. Pooja Thorat, Advocates, for Petitioner in W.P.No.
8884/2009.
Mr. Ravi Kadam, Advocate General a/w Mr. N.P.Deshpande, G.P. For
Respondent Nos. 1 to 3.
CORAM: FERDINO I.REBELLO,
DR.D.Y.CHANDRACHUD &
J.H.BHATIA, JJJ.
JUDGMENT RESERVED ON: 29.01.2010.
JUDGMENT PRONUNCED ON:03.03.2010.
JUDGMENT: (PER FERDINO I. REBELLO,J.)
1. A learned Division Bench of this Court by its order dated
September 30, 2008, noted that it was unable to agree with the
interpretation placed by another Bench of this Court in Hitesh Dasiram
Murkute v. State of Maharashtra & Ors., 2007 (4) Bom.C.R.784 on the
Judgment of the Hon'ble Supreme Court in Mari Chandrasshekhar Rao
vs. Dean, G.S. Medical College & Ors., (1990) 3 S.C.C. 130. The Bench
further observed that prima facie they are also not in agreement with the
interpretation placed by the Division Bench Judgment of this Court in
Bankimchandra vs. State of Maharashtra, 2006 (Supp.) Bom. CR.769.
The learned Chief Justice was thereafter pleased to constitute a Bench for
hearing and final disposal of these matters. Considering the controversy,
we had also by an order dated November 25, 2009, requested the learned
Advocate General to assist the Court and also called on other Counsel, who
may be directly affected, to address this Court.
2. The question framed for consideration reads as under :-
"Whether a person who was not ordinarily resident as on
the date of the relevant Presidential Notification in the area
that now constitutes the State of Maharashtra will be entitled
to the benefit of reservation in the State."
3. In our opinion, the law as to whether a migrant belonging to
the Scheduled Caste or Tribe is entitled to the benefits of reservation in the
State of migration, considering the Constitution Bench Judgment of the
Hon'ble Supreme Court in Mari Chandrashekhar Rao vs. Dean, Seth
G.S. Medical College & Ors., (1990) 3 SCC 130 and the Judgment of
another Constitution Bench in Action Committee on Issue of Caste
Certificate to Scheduled Castes and Scheduled Tribes in the State of
Maharashtra and another vs. Union of India and Anr. (1994) 5 SCC
244 may no longer be res-integra.
4. It appears that the learned Division Bench, which proceeded to
pronounce the Judgment in the case of Hitesh D. Murkute (supra) relied
on the Judgment of a Bench consisting of three Judges of the Supreme
Court in the case of Sudhakar Vithal Kumbhare vs. State of
Maharashtra & Anr., (2004) 9 SCC 481, which had been noted by another
Division Bench of this Court in Bankimchandra Makanbhai Patel
(supra). The view taken in Hitesh D.Murkute, appears to have been
reiterated in Santosh Padoti v/s. Caste Scrutiny Committee, 2006
(Supp) BCR 797 and Sheetal Manikrao Dupare vs. State of Mahaashtra
2007 (6) BCR 332.
5. At the outset, we may note that in Marri Chandrashekhar
Rao (supra), the issue before the Supreme Court was whether, a person
who is a member of a Scheduled Tribe, notified in State A who or
whose progeny migrate to State B, then is such person entitled to the
benefit of reservation in the State of migration i.e. State B. After
considering the various Constitutional provisions and more specifically
after examining the scope and ambit of Articles 14, 15, 16 and on the one
hand and Articles 341 and 342 on the other, the Constitution Bench of the
Supreme Court was pleased to hold that such a migrant is not entitled for
benefits as a Scheduled Tribe in the State of Migration. In the course of our
discussion, we will refer to some of the observations of the Supreme Court
on this aspect.
6. Then in the case of Action Committee (supra), the question
posed by the Constitution Bench was as under :-
"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
where a caste or tribe with the same nomenclature is specified
for the purposes of the Constitution to be a Scheduled Caste 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 Schedule Tribes in State B?"
In the course of the arguments, a contention was urged on behalf of
the respondent, before the Supreme Court that all the arguments which were
being advanced had been advanced in the case of Marri Chandrashekhar
Rao (supra) and answered. The Supreme Court in emphatic terms observed
"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". In other words, the Court held that even in
respect of a person who belongs to a tribe notified as a S.T. in the State
and having the same nomenclature is also notified as a tribe in the State of
migration, yet such migrant would not be entitled to the benefits of
reservation in the State of migration. Such person would continue to get the
benefit in the State of his origin.
7. We may now refer to the Judgment in Sudhakar Kumbhare
(supra). In Sudhakar Kumbhare, the Supreme Court was considering the
case of a person who had migrated from a region falling in the State of
Madhya Pradesh to the State of Maharashtra. The Court there observed
that the tribe had its origin in Chhindwara region, a part of which, that is
Chandrapur, on States Reorganization, came to be allotted to the State of
Maharashtra from the State of Madhya Pradesh. We may gainfully refer to
the following observations in Kumbhare's case.
"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 an effective or proper meaning so as to
exclude the possibility that a tribe which 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
consulted; but it is another thing to say that when an area
dominated by 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 States. In other words, the question that
is required to be posed and answered 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. With a view to
find out as to whether any particular area of the country was
required to be given protection is a matter which requires
detailed investigation having regard to the fact that both
Pandhurna 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 Tribe Order
1950 as it originally stood the Tribe Halba/Halbi of that region
may be given the same protection. 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." (emphasis supplied).
9. In Bankimchandra, Kumbhare's case was noted. The
Division Bench of this Court in Bankimchandra noted the provisions of
the Bombay Reorganization Act and more specifically Sections 26 and 27
and some other provisions which we may gainfully reproduce :
"Next we may refer to the relevant provisions of the Bombay
Reorganization Act, 1960 which received the assent of the President
of India on 25-4-1960 and in respect of which, the appointed date
has been fixed as 1-5-1960. Sections 26 and 27 of the Act are
relevant and may be gainfully reproduced :
26. As from the appointed day, the Constitution (Scheduled
Castes) Order, 1950 shall stand amended as directed in the
Seventh Schedule.
27. As from the appointed day, the Constitution (Scheduled
Tribes) Order, 1950, shall stand amended as directed in the
Eighth Schedule.
The 8th schedule amended the Constitution (Scheduled Tribes)
Order, 1950. Para 3 was substituted as under :
3. Any reference in this Order,' except Parts IV and VII-A of the
Schedule, to a State or to a district or other territorial division
thereof, shall be construed as a reference to the State, district
or other territorial division, constituted as from the 1st day of
November, 1956, and any reference in Parts IV and VII-A of the
Schedule to a State or to a district or other territorial division
thereof shall be construed as a reference to the State, district or
other territorial division, constituted as from the 1st day of
May, 1960.
We may also refer to Para 2 of the Constitution (Scheduled
Tribes) Order, 1950 which reads as under:
2. The tribes or tribal communities, or parts of or groups
within, tribes or tribal communities, specified in (Parts) to
(XVIII) of the Schedule to this Order shall, in relation to the
States to which those parts respectively relate, be deemed to be
Scheduled Tribes so far as regards members thereof resident in
the localities specified in relation to them respectively in those
Parts of that Schedule.
Part IV was substituted by inserting Part IV-Gujarat. The
notified Schedule Tribes in the State of Gujarat are set out
therein. Part VIIA is for Maharashtra and notified Scheduled
tribes in the State of Maharashtra are set out therein."
had not been considered in Kumbhare's case.
The Division Bench then noted as under :-
"In other words, though the Presidential Notification was
issued in the year 1950 because of the State Reorganization
Act, 1956 and Bombay State Reorganization Act, the benefits
would be available to only those persons amongst the notified
scheduled tribes who are residents in the localities. In other
words, if on 1-1-1960, when the State of Maharashtra came
into being, if there was a person belonging to any of the
notified scheduled tribes in the State of Maharashtra and if he
was resident in the localities in the State of Maharashtra only
then shall such person will be entitled to the benefits as a
member of the scheduled tribe in relation to that State
provided he was also resident in the erstwhile State of Bombay
on the date of the Presidential Notification dated 10-8-1950
and on 1-11-1956 when the new State of Bombay came into
being. This would mean that only those members of the
Scheduled tribes who are included as a notified scheduled
tribes in the State of Maharashtra and who were and are
permanent residents in the State of Maharashtra and in the
localities in which they are notified as on 1-1-1960, would be
entitled to be treated as S.T. in relation to the State of
Maharashtra, This aspect has not been considered by both the
division Benches as their attention was not drawn to the same.
The same reasoning will also apply insofar as scheduled
castes are concerned."
We may also note that by virtue of the provisions of the State
Re-organization Act, it is Parliament that amended the Presidential
Notification specifying the S.T.s and S.C.s recognised in the new
State. The State of Maharashtra had no say in the matter as that
was beyond its competence and exclusively within the domain of
Parliament.
9. If such construction is not to be accepted in view of the
observation in Kumbhare (supra), as understood in Markute
(supra) and the date of the Presidential notification i.e. 10th August,
1950 is considered without reference to the reservaton in the
geographical area of the new State of Maharashtra, then all S.T.s in
the erstwhile geographical area of the Bombay State on the date of
the Presidential Order would also be S.T.s . for the State of Bombay
as also the State of Bombay which came into being in 1956 though
they were not ordinarily resident of the State of Maharashtra on
10.8.1950. This would mean that S.T.s in the earlier geographical
region of Bombay State as on 10-8-1950 though in some other State
if notified, as S.T.s in that State, and also in the State of
Maharashtra, though not resident in the State of Maharashtra, would
be entitled to the benefits of S.T. Reservation in the State of
Maharashtra . This would increase the population of S.T.s for the
State of Maharashtra, and would deny to the members of the S.T.s
ordinarily resident in the State of Maharashtra, the benefits of
reservation as they would have to share the same with S.T.s having
similar nomenclature from other States which formed the erstwhile
State of Bombay as on 1-8-1950. The S.T.s of the other States at the
same time would continue to get the benefit of reservation in the
State of origin.
10. In Kumbhare's case (supra), the Supreme Court was pleased
to observe as under :-
"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."
Based on these observations, the learned Division Bench in Hitesh D.
Murkute and the other Division Benches which followed Murkute, were
pleased to hold that if a region was divided amongst two States under the
States Reorganization Act, then in such a case such a migrant from that
region will be entitled to the benefit of reservation in the State of migration.
11. We may at once note that apart from the two distinct features
which were pointed out in the case of Bankimchandra (supra), which
considered the observations in Kumbhare, the attention of the Supreme
Court was not drawn to Rule 5 of the Maharashtra Scheduled Tribes
(Regulation of Issuance and Verification of Certificate Rules, 2003. We
may gainfully refer to Rule 5(10)(c) with Explanation, which reads as under
:-
"5. Grant of Scheduled Tribe Certificate to migrated persons.
has migrated to Maharashtra from the State of his origin for
the purpose of seeking education, employment etc., will be
deemed to be a Scheduled Tribe of the State of his origin and
will be entitled to derive benefits from the state of his origin
and not from the state of Maharashtra.
Explanation.- For the purpose of sub-rule (1), "Migrant from
other State" means -
(i) a person who has migrated to Maharashtra
State from any other State/Union Territory on or after the
First Presidential Order i.e. 6th September 1950; (emphasis
supplied).
(ii) a person whose tribe is scheduled as a
Scheduled Tribe in his original State, but not in Maharashtra
State and the person whose tribe is scheduled as Scheduled
Tribe in Maharashtra State as well as in his original State
having his ordinary residence on the date of the notification of
Presidential Order scheduling his tribe has been in the
State/Union Territory other than Maharashtra would both be
treated as migrants."
12. It would thus be clear that insofar as State of Maharashtra is
concerned, both classes of migrants will be treated as belonging to the
Scheduled Tribe in the State of their origin and will be entitled to derive
benefits in the State of their origin and not from the state of Maharashtra.
The Explanation further makes it clear that the cut-off date is 6 th
September, 1950 even if there be some other subsequent Presidential
Notification notifying some other tribes. Considering the explanation, what
is relevant for considering is whether a person in the case of S.T. was
ordinarily resident on 6th September 1950. Only such a person would be
ordinarily resident in the geographical area now constituting the State of
Maharashtra and will be entitled to the benefit of reservation in the State of
Maharashtra.
13. Considering the observations in Kumbhare's case, we may
only refer to the following observations in Action Committee (supra) :-
"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 specially
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 Cases 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 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 in mind,
then the determination of the controversy in the instant case
does not become difficult."
14. Before proceeding further, we may also refer to the Judgment
in Subhash Chandra & Anr. vs. Delhi Subordinate Services Selection
Board & Ors., 2009 (11) SCALE 278. That was a case where migrants in
the Union Territory of Delhi, who were born in the geographical area of the
Union Territory but whose parents had migrated after the Presidential
Notification, claimed benefit of reservation to posts in the union Territory of
Delhi. The argument was accepted by a learned Single Judge of the Delhi
High Court and upheld by the Division Bench. The matter went in appeal
to the Supreme Court. After considering the various Judgments, including
two Constitution Bench Judgments referred to earlier, the Supreme Court
was pleased to observe that they are bound by the Constitution Bench
Decision in Marri Chandrashekhar Rao and accordingly set aside the
orders passed by the Delhi High Court. In other words, children of migrants
are not entitled to the benefit of reservation even if they have the same
nomenclature as the Scheduled Caste notified for the Capital Territory of
Delhi.
15. In our opinion, we may once again refer to Marri
Chandrashekhar Rao (supra) to consider the effect of Articles 14, 19(1)
(d), 19(1)(e) and 19(1)(f) and whether this could be given effect to by
construing Article 342. This was answered by the Constitution Bench in the
following words :-
"The words "for the purposes of this Constitution" must
mean that a Scheduled Caste so designated must have right
under Articles 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 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 of
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 advantaged castes or tribes and who do not.
Treating the determination 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
Article 341 read with Article 15(4) of the Constitution."
16. The Constitution Bench also noted the fate of such migrants
and answered that question in para 23 of its Judgment which we may
gainfully refer and which reads as under :-
"23. Having construed the provisions of Articles 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 students
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 guardian'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 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 profession, 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 migrated then some consideration is desirable to be
made on that ground. It would, therefore, be necessary and
perhaps desirable 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."
17. It is possible that merely because of migration, the
disadvantages which a person belonging to a backward class suffers from
may not disappear even in the State of migration. That however has to be
read in the context of the words `for the purpose of the Constitution' and
`in relation to that State' and the Presidential Notifications notifying the
various castes and tribes for each State. In Bankimchandra, this aspect
was noted and the consequences that would follow if migrants from another
State which formed a part of the region before its bifurcation, were granted
the benefits in the State of migration. Reservation is based on the
population of the communities in that State. In Maharashtra, it is 9% for
Scheduled Tribes and 13% for Scheduled Castes. The present State of
Maharashtra, at the time of coming into force of the Constitution, formed a
part of the larger State of Bombay which was a large geographical area.
This State of Bombay thereafter was reorganized in 1956. Thereafter, there
was further reorganization on 1.5.1960. The consequences of accepting the
argument would be, that all the caste and tribes notified in the Presidential
Notification in the erstwhile State of Bombay at the time of coming into
force of the Constitution if notified for the State of Maharashtra would also
be entitled to the benefits in the new State. In our opinion, this would run
counter to the ratio of the Judgment of the Constitution Benches in Marri
Chandra Shekhar Rao and Action Committee which have explained and
interpreted Articles 341 and 342 of the Constitution. As long as Parliament
or the State Legislature does not make any law as noted by the Supreme
Court in Marri Chandra Shekhar Rao, reproduced earlier, the migrants in
the State of migration will not be entitled to the benefits of reservation in
the State of migration, but will continue to enjoy the benefits in their home
State or State of origin. The issue of who is ordinarily resident is also no
longer open for consideration as there are various Presidential Notifications
on that count. In Action Committee, the learned Constitution Bench has
referred to the various notifications in the matter which have been issued.
The communication of 22.3.1977 was quoted wherein it has been set out as
under :-
"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 cannotes 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."
In the Notification dated 6.8.1975, in respect of persons who have been
born after the date of Presidential Notification, it is provided as under :-
"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."
Then referring to the letter of February 12,1981, it was stated:
"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 of the
State of Maharashtra before 10.3.1950 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.",
18. A person does not cease to belong to his caste/tribe on
migration to an area more advanced with a more liberal atmosphere.
The long residence in such State of migration could result in the
handicaps suffered by belonging to a socially disadvantageous community
being tempered down. While enacting Articles 341 and 342, the
Constitution Fathers did note these aspects. Firstly, by limiting it initially
for a time-frame with the hope and expectation that education and socio-
economic justice would result in these communities becoming socially
and economically forward. At the same time, the Constitution Fathers in
relation to the State also noted that benefits must go to those socially and
economically disadvantaged in the geographical area of that State.
Considering the tribes and castes notified by the Presidential Orders, all
such castes and tribes would be getting benefits of reservation in the State
of their origin. The Court in Marri Chandrashekhar Rao also noted where
there may be cases of persons migrating individually for the purpose of
employment, etc. but having construed Article 342, the Court left it to the
wisdom of Parliament to provide benefits in the State of migration.
19. It was sought to be contended on behalf of Counsel supporting
the view taken in Hitesh D. Murkute (supra) that in Action Committee
(supra), the learned Supreme Court had not answered the issue, but had
left it open for consideration and in that context, the Judgment in
Kumbhare's case (supra) must be understood.
We are of the opinion that this argument is untenable. The
learned Supreme Court in Action Committee, clearly considered every
aspect of the matter. The issues were considered in the context of the
arguments advanced that the issue was covered by the Constitution Bench
Judgment in Marri Chandrashekhar Rao. The Judgment in Marri
Chandrashekhar was analysed and the Court found that the same
arguments which were rejected in Marri Chandrashekhar were once again
sought to be canvassed in Action Committee and rejected the said
contention, by holding that the Court was in agreement with the
interpretation placed on the various provisions of the Constitution,
particularly Articles 341 and 342. It was further observed that nothing had
been pointed out to persuade the Constitution Bench, that the view taken by
the earlier Constitution Bench required reconsideration by a larger Bench.
20. Shri Mendadkar sought to contend that what was relevant is
not the date of migration, but the date of inclusion of caste or tribe in the
Schedule. In our opinion, there possibly could have been no difficulty in
accepting that proposition, considering that the person must be ordinarily
resident on the date of the Presidential Notification in the geographical area
from which such person claims the benefit.
However now in the Maharashtra Rules, the date for S.T.
has been set out 6th September 1950 and for S.C., considering the various
Government communications, including the letter of February 12, 1981 it
will be 10.3.1950. Shri Mendadkar also sought to point out that the
statement in Bankimchandra, that attention of the Apex Court was not
invited to the provisions of the State Reorganization Act or the Bombay
State Reorganization Act was incorrect. Reference was made in para 5 of
the Judgment in Kumbhare's case. Nowhere in Kumbhare's case the issue
of the States Reorganization Act and amendment to the Presidential Order
has been discussed. Whatever may be the position, Rule 5(c) and
Explanation thereto was not considered
21. If we now consider the discussion and the ratios of the
Judgments which are referred to earlier, the position in law would be that
the ratio in Marri Chandra Shekhar Rao (supra) as affirmed in Action
Committee, is the law declared by the Supreme Court. In other words, if a
person migrates to a geographical area forming part of another State after
the date of Presidential Notification, such a person will be treated as a
migrant. So also, the children of such migrants born after the date of
Presidential Notification will be entitled to the benefits of reservation in the
State where their parents were ordinarily resident. Marri Chandrashekhar
Rao (supra) makes that position clear.
22. Having said so, we may now consider the proposition in
Hitesh D. Murkute (supra). The learned Bench down there had summed up
its conclusions in para 41, which we may reproduce hereinbelow.
"41. To sum up:
(i) It is necessary to give full effect to both the expressions "for the
purpose of this constitution" as well as "in relation to the State",
appearing in Articles 341 and 342 of the Constitution and Clause 2 of
the Constitution Scheduled Tribe and Scheduled Castes Orders, 1950,
in order to identify the beneficiary correctly i.e. by ensuring that he
belongs to caste identified with reference to a state as scheduled caste
or tribe.
(ii) The object of including a caste or a tribe in the schedules to the
orders was to do away with their disadvantaged position in the areas
where they resided vis a vis other population. The crucial test would
therefore be whether the person concerned suffers the same degree of
disadvantage vis-a-vis other segments, as other local people of his
caste suffer or whether as a migrant, he is placed on a higher
pedestal.
(iii) Extending benefits to a migrant does no offence to the expression
'in relation to the State' in Articles 341/342 of the Constitution or
Clauses 2 of Scheduled Caste/Scheduled Tribes Orders, 1950, since
entitlement of such a person would have to be still decided with
reference to the origin of such migrant and identification of migrant's
caste as backward in relation to such State.
(iv) Date too is equally relevant in order to identify the person as
belonging to caste included in the schedule on the date of such
inclusion with reference to locality identified in the schedule.
Therefore, a person claiming benefit would have to show that his
ancestors hailed on the date of inclusion of caste in schedule from a
place identified in the schedule. In other words, the relevant date is
not date of migration but date of inclusion of caste or tribe in the
schedule.
(v) Reorganization of States did not proceed on the basis of castes or
tribes but on linguistic basis and therefore, localities of persons
entitled to the benefit of reservation got divided in different states.
(vi) If upon removal of area restrictions, in the entire area of the State
as originally existed on the date of notification of Constitution
(Scheduled Castes/Scheduled Tribes) Orders, the persons concerned
could avail of the benefits of reservation, there is no reason why they
should be denied such benefits upon reorganization of the states, in
which a part of their locality was included.
(vii) The ratio of the decision in Marri Chandra is only that a
migrant would be disentitled for reservation in the state of migration
if his caste is not notified as scheduled caste or scheduled tribe in the
state of migration. (Since in Marri Chandra's case the caste "Gouda"
was notified in the State of Andhra Pradesh but not in Maharashtra).
It would be impermissible to conclude that even though his caste is so
notified in the State of migration, he would be disentitled to benefits,
since such conclusion would frustrate the very object of providing
benefits enumerated at (ii) above.
(viii) In Action Committee while explaining and following the ratio in
Marri Chandra's case, the Apex Court must be held to have merely
sought to deny benefits to migrants belonging to a caste of same
nomenclature, by consciously choosing the expression "same
nomenclature" and avoiding the use of words "same caste". This
implies that if persons belong to the 'same caste' they were not to be
denied the benefits.
(ix) Sections 26 and 27 of the Bombay State Reorganization Act
merely amend the schedules as a corollary to creation of State of
Maharashtra and have no bearing on the question of entitlement of
the migrants to reservation with reference to date on which the state
was created.
(x) As held by the Apex Court in Sudhakar v. State, if a migrant
belonged to a community which was recognised as scheduled caste
or scheduled tribe in any locality which has been divided upon
reorganization of states and his caste is recognised as Scheduled
Caste/Scheduled Tribe even in such newly formed states, the migrant
would be entitled to benefit of reservation even in the State, in which
part of the locality other than his place of origin has gone."
23. We propose to deal with each of the conclusions.
(i) Insofar as conclusion (i) is concerned, really speaking, it is in
terms of the law declared in Marri Chandrashekhar Rao (supra).
(ii) Insofar as conclusion (ii) is concerned, the same runs counter
to the law declared by the Constitution Benches in Marri Chandrashekhar
Rao and Action Committee. To that extent, the conclusion that a crucial
test would be whether the person concerned suffers the same degree of
disadvantage vis-a-vis other segments, as other local people of his caste
suffer or whether as a migrant, he is placed on a higher pedestal, in our
opinion, is contrary to the ratio in Marri Chandrashekhar Rao and Action
Committee (supra). Once the Presidential Notification is issued that is
recognition of their disadvantage. Courts cannot examine that issue.
Further, any executive action or legislative enactment which
interferes,disturbs, rearranges, regroups or reclassifies the various castes
found in the Presidential List will be violative of scheme of the Constitution
and will be violative of Art. 341 of the Constitution. (See E.V.Chinnaiah
v/s. State of A.P. (2005) 1 SCC 394). We may also gainfully refer to the
following observations in State of Maharashtra v/s. Milind and others
(2001) 1 SCC 4:-
"15... Courts cannot and should not expand jurisdiction
to deal with the question as to whether a particular caste, sub-
caste; a group or part of tribe or sub-tribe is included in any
one of the entries mentioned in the Presidential Orders issued
under Articles 341 and 342 particularly so when in clause (2)
of the said article, it is expressly stated that the said Orders
cannot be amended or varied except by law made by
Parliament. The power to include or exclude, amend or alter
Presidential Order is expressly and exclusively conferred on
and vested with Parliament and that too by making a law in
that regard. The President had the benefit of consulting the
States through Governors of States which had the means and
machinery to find out and recommend as to whether a
particular caste or tribe was to be included in the Presidential
Order. If the said Orders are to be amended, it is Parliament
that is in a better position to know having the means and
machinery unlike courts as to why a particular caste or tribe
is to be included or excluded by law to be made by
Parliament. Allowing the State Governments or courts or
other authorities or Tribunals to hold inquiry as to whether a
particular caste or tribe should be considered as one included
in the schedule of the Presidential Order, when it is not so
specifically included, may lead to problems..."
(iii) Conclusion (iii) , in our opinion, also runs directly counter to
the interpretation given to Articles 341 and 342 in Marri Chandrashekhar
Rao (supra) and Action Committee (supra). In Marri Chandrashekhar, the
Supreme Court has noted that it is for the Parliament/Legislature to extend
benefits to migrants. As the law now stands in the State of Maharashtra,
there is no such legislation and, therefore, the conclusion runs directly
counter to the law in Marri Chandrashekher and Action Committee.
(iv) Insofar as conclusion (iv) is concerned, we find in case of S.T.
A person is treated as migrant if he was not ordinarily resident in the
geographical area now forming part of the State of Maharashtra as on 6th
September, 1950. In case of a Scheduled Caste, it will be in terms of the
letter dated February 12,1981 which has fixed the date as 10.3.1950
which has been noted in Marri Chandrashekhar Rao and Action Committee.
The date when a person can be treated as a migrant or non-migrant is the
date as aforesaid.
(v) Insofar as conclusion (v) is concerned, in our opinion,it has
hardly any relevance for the purpose of answering the controversy. The old
concept where States were formed based on linguistic basis no longer
subsists after the formation of the States of Uttarakhand, Chhattisgarh and
Jharkhand as those States have the same language as of the States from
which they have been excluded, Uttar Pradesh, Madhya Pradesh or Bihar.
(vi) Insofar as conclusion (vi) is concerned, the conclusion again
runs directly counter to the ratio in Marri Chandra Shekhar Rao and Action
Committee (supra). Removal of area restriction within a State by a
notification does not mean that the Schedule to the Constitution stands
amended. In our opinion, such a conclusion is not even borne out by the
observations in Kumbhare's case (supra).
(vii) Conclusion (vii) runs counter to the Judgment in Action
Committee where the question posed itself was a case where the caste/tribe
happens to be notified both in the State of origin and the State of migration.
(viii) Insofar as conclusion (viii) is concerned, firstly, a judgment of
a Court cannot be read as a legislation. What the Courts must consider is
the ratio of the judgment and not the flourish of the language. The
expression "same nomenclature" means the same name. The same name
would therefore mean the name of the same tribe or caste. Various
notifications issued are in respect of castes and/or tribes. No inference nor
implication can be drawn because in Mari Chandrashekhar's case the Court
used the expression "same nomenclature". In our opinion, the said
conclusion also runs counter in Marri Chandra Shekhar and Action
Committee as also in Subhash Chandra.
(ix) Insofar as conclusion (ix) is concerned, reference to Sections
26 and 27 of the Bombay State Reorganization Act as considered in
Bankimchandra's case was to identify where the person was `ordinarily
resident' for the purpose of benefit. It is true that it has no bearing on the
question of entitlement of the migrants to reservation. However, it is
important to note, that to claim benefits of reservation under the
Presidential Notification, the person claiming such benefit must have
ordinarily resided as of the date of the Presidential Notification in the area
now constituting the State of Maharashtra. This has been explained in
Bankimchandra in paragraph 6-7 which we have referred to earlier.
(x) Insofar as conclusion (x) is concerned, having explained the
Judgment in Sudhakar's case which is the Judgment of the Bench of three
Judges and the two Constitution Bench Judgments in Marri Chandrashekhar
and Action Committee, the scheduled castes and scheduled tribes from any
locality which has been divided upon Reorganization of States and such
caste or tribe is also recognized as Scheduled Caste and Scheduled Tribe
in the newly formed State, such migrant would not be entitled to benefit of
reservation in the State of migration but would be entitled only of benefit
in the State of origin.
24. Having so explained, the conclusions, in our view, we
disapprove and overrule the view taken in Hitesh D.Murkute, Santosh
Padoti, Sheetal Dupare and other judgments not brought before us but
which may have taken the same view.
25. While concluding, we may point out the maintenance of
judicial discipline is a part of our judicial process. It is open to a co-
ordinate Bench if the earlier judgment is per incuriam to take a different
view. But in a case where a Court seeks not to follow the judgment either it
must give reasons as to why the judgment is per incuriam and/or refer the
matter for consideration by a larger Bench. When a decision can be said to
be per incuriam, we may refer to the Judgment in Subhash Chandra
(supra) though made in the context of decisions of the Final Appellate
Court :-
"In an article "Final Appellate Courts Overruling
Their Own "Wrong" Precedents:
The Ongoing Search For Principle" by B.V.Harris published
in (2002) 112 LQR 408-427, it is stated:
"A decision may be held to be per incuriam where
relevant statutory provisions, or binding case law authority,
have been overlooked or misinterpreted in arriving at the
holding in the precedent..
Considerations Relevant To Deciding whether to Defer
or to Overrule Precedent:
The first consideration for a final appellate court
called upon, in the exercise of its discretion, to overrule an
allegedly wrong precedent of its own, will be whether the
precedent can be distinguished on the facts, including
changing social and other contexts, or distinguished on the
law. If the precedent can be distinguished, overruling will not
be necessary. The subsequent appellate court will rather be
free to choose not to follow the precedent which can be
distinguished.
Second, the precedent should be considered
closely to determine whether the decision was reached per
incuriam. A per incuriam precedent may be overruled.
Third, the workability of the precedent should be
assessed. Evidence of lack of workability may justify
overruling.
The fourth consideration will be whether any
reasons have been advanced in the appeal which were not
considered in deciding the precedent. This category could
arguably be included in many circumstances, either in the first
category as a form of distinguishing, or in the second category
if the omission is sufficiently serious to cause the precedent to
be per incuriam.
All of the first four considerations have
traditionally been accepted as exempting subsequent appellate
courts from the obligation to follow precedent."
On the issue of judicial discipline, the Supreme Court observed in Official
Liquidator vs. Dayanand & Ors. (2008) 10 SCC 1:-
"90. We are distressed to note that despite several
pronouncements on the subject, there is substantial increase in
the number of cases involving violation of the basics of judicial
discipline. The learned Single Judges and Benches of the High
Courts refuse to follow and accept the verdict and law laid
down by coordinate and even larger Benches by citing minor
difference in the facts as the ground for doing so. Therefore, it
has become necessary to reiterate that disrespect to
constitutional ethos and breach of discipline have grave impact
on the credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence
developed in this country in last six decades and increase in the
frequency of conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch as the courts
at the grass root will not be able to decide as to which of the
judgment lay down the correct law and which one should be
followed.
91. We may add that in our constitutional set up every
citizen is under a duty to abide by the Constitution and respect
its ideals and institutions. Those who have been entrusted with
the task of administering the system and operating various
constituents of the State and who take oath to act in
accordance with the Constitution and uphold the same, have to
set an example by exhibiting total commitment to the
Constitutional ideals. This principle is required to be observed
with greater rigour by the members of judicial fraternity who
have been bestowed with the power to adjudicate upon
important constitutional and legal issues and protect and
preserve rights of the individuals and society as a whole.
Discipline is sine qua non for effective and efficient function of
the judicial system. If the Courts command others to act in
accordance with the provisions of the Constitution and rule of
law, it is not possible to countenance violation of the
constitutional principle by those who are required to lay down
the law."
26. Having said so, we may now answer the Reference. In case of
a migrant belonging to a Scheduled Caste, not ordinarily resident as on
10.3.1950 in the area that now constitutes the State of Maharashtra and in a
case of S.T., considering Rule 5, on 6.9.1950, would not be entitled to
benefits of reservation as S.C./S.T. in the State of Maharashtra. They and
their progeny will continue to get the benefits of reservation in the State of
origin. Reference answered accordingly.
27. In conclusion, we thank the learned Advocate General as also
all the Counsel, who have assisted us at the hearing of this Reference.
28. The Registry to place the Petitions before the appropriate
Benches for decision on merits.
(FERDINO I.REBELLO,J.)
(DR.D.Y.CHANDRACHUD,J.)
(J.H.BHATIA,J.)