Pushpa Devi vs The Kerala Public Service Commission and Others

K.S. Radhakrishnan, J.—The question that is posed for consideration in the instant case is as to whether a member of the Scheduled Caste or Scheduled Tribe would lose the benefit of that caste or tribe on migration to Anr. State, even if that State recognizes the caste or tribe of that member as the one belonging to Scheduled Caste or Scheduled Tribe.

In the instant case, Petitioner belonged to Kanyakumari District in the State of Tamil Nadu and was married to one P.D. Dharmaraj on 19th January 1989, who is a native of Kerala. She applied for the post of Dairy Extension Officer in pursuance to a notification dated 15th March 1991 issued by the Kerala Public Service Commission. In her application, she claimed her community as Hindu Sambava. As per the information furnished in column 12 of the application she belongs to the State of Tamil Nadu. As the selection pertained to the Special Recruitment from among S.C./ S.T. candidates, a person belonging to any State other than the State of Kerala, is not eligible for the benefit of community for appointment in the State. She was therefore not eligible to apply for the post in response to the notification dated 15th March 1991. Her application was rejected by the Public Service Commission. The Commission again notified the post on 17th January 1992 which was a selection meant for S.C./S.T. candidates in accordance with Rule 17A of the Kerala State and Subordinate Service Rules. Petitioner submitted her application dated 21st December 1992. In column 7, she stated that she belongs to Kerala State. Since the details furnished by the Petitioner in the applications dated 17th April 1991 and 21st December 1992 were contradictory, the Commission in their letter dated 7th June 1993 directed her to explain the circumstances under which contradictory claims were made in two of her applications. Against the said notice, she filed an appeal and requested that she may be treated as belonging to the State of Kerala since she got married to a person of Kerala State and she is permanently settled down in Kerala. She produced a certificate from the Tahsildar to show that she belonged to Tamil Nadu by birth but is residing in Kerala along with her husband since 19th January 1989. Appeal submitted by the Petitioner was, however, rejected by the commission by order dated 16th August 1993 stating that she is not entitled to get the benefit of the community.

The main question involved in this case is as to whether the denial of the benefit of community in the State of Kerala on the ground that Petitioner belonged originally to the State of Tamil Nadu is legally correct or not. In Part XVI of the Constitution special provisions relating to certain classes including Scheduled Castes and Scheduled Tribes have been made. Under Article 341 of the Constitution of India, 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 the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be Article 342 deals with Scheduled Tribes. 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. 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. It is therefore evident that the castes or tribes have to be specified in relation to a given State or Union Territory.

The guidelines for verification of claim of S.C./S.T. are laid down in the letter No. 35/1/72/R4/S.C.T., dated 2nd May 1975 of the Ministry of Home Affairs, Government of India. One of the guidelines states that where a person migrates from one State to Anr. , he can claim to belong to a 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. The State Government also in their letter No. 51181/SD4/66/PD., dated 20th January 1967 had clarified that the Government are not bound to give reservation in appointment to S.C./S.T. etc. of other States and therefore there is no need to extend the benefit of community to candidates belonging to other States. The Government of India vide their letter No. 16014/1/82/S.C. and B.C.D.-l, dated 6th August 1984 has clarified to all Chief Secretaries of State and Secretary, U.P.S.C. that the S.C./S.T. person on migration from the State of his origin to Anr. State will not lose his, status as S.C./S.T. but he will be entitled to concession/benefits admissible to the S.C./S.T. from the State of origin and not from the State to which he has migrated.

In the instant case, Petitioner belongs to Hindu Sambava Community, which is a Scheduled Caste in the State of Tamil Nadu. The said community is also a Scheduled Caste in the State of Kerala also. It was so included in the Constitution (Scheduled Castes) Order, 1950. It is the contention of the Petitioner''s Counsel that the denial of benefits and privileges by the State of Kerala 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. Counsel contended 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. It was stated that those belonging to Scheduled Castes and 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 Anr. in search of livelihood or to escape the wrath of their oppressors.

The question as to whether the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country have to be given protection and to what extent came up for consideration before a Constitution Bench of the Supreme Court in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, . The Supreme Court held that 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 become equals with Ors. 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 question was later considered by the Supreme Court 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 (UOI) and Another, . The Supreme Court took the view that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes or Backward Classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non-est in Anr. 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 a State as a Scheduled Caste does not necessarily mean that if there be Anr. caste bearing the same nomenclature in Anr. 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 the 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.

In the instant case, Petitioner belongs to Hindu Sambava community in the State of Tamil Nadu, which is a Scheduled Caste recognized in that State. The situation that we get in the State of Tamil Nadu with respect of that caste or community is different from that we get in the State of Kerala. There are many communities included in the list of Scheduled Castes/Scheduled Tribes in the State of Tamil Nadu, which do not find a place in the State of Kerala. Those candidates even though included as Scheduled Castes/Scheduled Tribes are not eligible to apply in response to the notification in the State of Kerala, though those candidates have settled down in the State of Kerala on various grounds. The Petitioner''s position would be the same but for the fact that the Sambava community to which she belongs is included in the list of S. Cs. in the State of Kerala. Therefore to confer the benefit on the Petitioner would be a case of treating the two equals as unequal which is discriminatory. As far as one person who originally belongs to S.C./S.T. in one State cannot derive the benefit in Anr. State, Petitioner is also not entitled to the benefit even though her community is included in the list of Scheduled Castes in the State of Kerala. She is entitled to the benefit of her community only in the State of Tamil Nadu, and not in the State of Kerala. The stand taken by the Public Service Commission is not discriminatory and violative of Articles 14 and 16 of the Constitution of India.

For the abovementioned reasons, Original Petition fails and the same is accordingly dismissed.