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Judgment
P.K. Jaiswal, J.
By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for the following reliefs:-
“(i) The petitioner humbly submits that, the suitable writ/directions may kindly be issued to the respondents for issuance of caste certificate to the
petitioner.
(ii) That, the notification No.F7-42/2012/ vk0 iz0 /,d dated 13-01-2014 may kindly be modified to the extent that it should inclusive for the girls of
reserve category who are born brought-up in any other state but now has married to permanent resident of State of Madhya Pradesh.
(iii) The petitioner may kindly be permitted to participate in the counseling process as a reserve category candidate.
(iv) Any other relief which this Hon'ble Court may deem fit may kindly be granted to the petitioners.â€
Petitioner before this Court belongs to Scheduled Caste and a Case Certificate has been issued by the Competent Authority from
Districtâ€"Lalitpur (U.P.), which is enclosed as Annexure P/2.
According to the petitioner, she got marriage to Shri Purushottam Sadh in the year 2011 and have become permanent resident of Madhya Pradesh
since she is living in M.P. from last five years. Her husband also belongs to the same caste i.e. “Koriâ€, which is again a scheduled caste. She has
enclosed a notification dated 10.11.1964 and the same reflects that “Kori†caste is a scheduled caste in the State of Madhya Pradesh.
Her grievance is that she is not being permitted to take part in Counseling at Government College of Nursing inspite of the aforesaid fact that the
she belongs to Scheduled Caste as she is already having a certificate issued by the State of Uttar Pradesh.
The respondents have refused to give the benefit of reservation to the petitioner on account of her birth place being in the State of U.P. She has
also passed her intermediate examination from the State of Madhya Pradesh whereas other exams were passed from Districtâ€" Lalitpur, (U.P.). She
wants to get admission in B.Sc. Nursing four year degree course in the Government College of Nursing, Indore and, therefore, she appeared in the
written test on 19.6.2016 in which she got 78 marks out of 150 and secured 6th rank in merit list of reserve category. Since the age limit for general
category is 25 years, therefore, if the benefit of reserved category will not be given to the petitioner, then she will not get admission in the B.Sc.
Nursing four year degree course in Government College of Nursing, Indore.
Learned Counsel for the petitioner has submitted that she is by birth belongs to “Kori†caste and she also got married to a person belonging to
the same Caste, “Koriâ€, which has been considered and treated as a Scheduled Caste in both the aforesaid States i.e. in the State of Uttar
Pradesh as well as in the State of Madhya Pradesh according to the provisions of the Constitution of India enshrined under Article 341 (2) of the
Constitution.
Learned Counsel for the petitioner further submits that she is suffering and being deprived of her lawful and fundamental rights to get admission in
the College of her choice and that too when there are constitutional provisions in her favour. He has drawn our attention to Clauses 4, 5.2 (i) & (ii)
and 8.11 (i) & (iii)Â of Annexure P/1 of GAD circular issued on 13.1.2014 and submitted that vide order dated 1.9.2016 she was permitted to
participate in the Counseling under the reserved category. This Court has also observed that in case the petitioner gets admission, by virtue of her
counseling, the percentage of marks received by her during admission shall be provisional in nature. Clause 4, 5.2 (i) & (ii) and 8.11 (i) & (iii) of GAD
Circular dated 13.1.2014 reads as under:-
 4- ik=rk dh vko';d 'krZ s %&
4-1 Hkkjr ljdkj dh vf/klwpuk lfao/kku ¼vuqlwfpr tkfr;ka½ vkns'k] 1950 fnukad 10 vxLr] 1950 ,oa lafo/kku ¼vuqlwfpr
tutkfr;ka½ vkn's k] 1950 fnukad 06 flrEcj]1950 }kjk e/;izns'k jkT; ds fy, ?kksf""kr vuqlwfpr tkfr rFkk vuqlwfpr tutkfr dh lwph ¼le;≤ ij fd;s x;s
la'kks/ku lfgr½ esa vkosnd dh tkfr lacaf/kr izoxZ esa vf/klwfpr gksA
4-2 vkosnd@mldk ifjokj dafMdk 4-1 esa mYysf[kr tkfr;ksa dh vf/klwpuk tkjh gksus dh frfFk vFkok mlds iwoZ ls e/;izns'k jkT; esa fuokl djrk gksA
4-3 vU; fiNM+s oxksZ ds fy, vkfne tkfr] gfjtu ,oa fiNM+k oxZ dY;k.k foHkkx dh vf/klwpuk Øekad ,Q 8&5&iPphl&4&84] fnukad 26 fnlEcj] 1984
¼le;≤ ij fd;s x;s l'a kks/ku lfgr½ esa vkosnd dh tkfr 'kkfey gksA
4-4 vU; fiNM+s oxZ ds lanHkZ esa vkosnd dk ifjokj Øhfeys;j dh Js.kh esa ugh vkrk gksA
4-5 foeqDr] ?kqeDdM+ ,oa v)Z ?kqeDdM+ tkfr;ksa dh 'kklu }kjk tkjh lwph esa vkosnd dh tkfr 'kkfey gkAs
5-2 e/;izns'k esa fuokl ,oa tkfr dh iqf""V djus ds fy;s fuEukafdr nLrkost layXu fd;s tk ldrs gS %&
(i) tkfr dh iqf""V grs q &
ifjokj  ds  lnL;  ¼nknk@nknh@ijnknk@ijnknh firk@ekrk@pkpk@HkkbZ@cfgu½ ds uke ntZ vpy lEifRr dk fjdkMZ
¼Hkwfe@Hkw[k.M@edku dh jftLVªh ;k vU; dksbZ jktLo fjdkMZ vkfn½ dh Nk;kizfr] ftlesa tkfr dk mYys[k gksA vFkok
ifjokj ds fdlh lnL; ¼firk@pkpk@HkkbZ@cfgu ;k nknk½ dks o""kZ 1996 ds ckn vuqfoHkkxh; vf/kdkjh ¼jktLo½ }kjk tkjh tkfr izek.k i=A
(ii) ifjokj dh o""kZ 1950 esa fuokl dh iqf""V gsrq nLrkost  ¼tks miyC/k gks½ f'k{kk@'kkldh; lsok@ernkrk ifjp; i=@ifjokj ds lnL;
¼nknk@nknh@ijnknk@ijnknh firk@ekrk@pkpk@HkkbZ@cfgu½ ds uke ntZ vpy lEifRr dk fjdkMZ ¼Hkwfe@Hkw[k.M@edku dh jftLVªh ;k
vU; dksbZ jktLo fjdkMZ vkfn½ dh Nk;kizfrA
8-11 vUrjkZT;h; izo`tu lca a/kh izdj.kksa esa tkfr izek.k i= dh O;oLFkk & (i) vuqlwfpr tkfr vFkok vuqlwfpr tutkfr dk dksbZ O;fDr@ifjokj jk""Vªifr
}kjk lafo/kku ds vuqPNsn & 341 ,oa 342 ds rgr tkfr;ksa dh vf/klwpuk tkjh gksus ds o""kZ 1950 ds ckn rFkk vU; fiNM+s oxZ dk dksbZ O;fDr@ifjokj
jkT; ljdkj dh vf/klwpuk fnukad 26 fnlEcj] 1984 tkjh gksus ds ckn fdlh vU; jkT; ls izo`ftr gksdj e/;izns'k esa vk;k gS] rks mls@mldh larku dks e/;izna'k
vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZ ds fy;s tkfr izek.k i= i`Fkd izk:i&rhu ¼tks ifjf'k""V&*N* ij gS½ esa tkjh fd;k tk,xkA
(iii) Hkkjr ljdkj] x`g ea=ky; ds vkns'k No. BC-16014/1/82-SC
 & BCD-1 fnukad 6 vxLr] 1984 ds vuqlkj izk:i&rhu eas tkjh tkfr izek.k i= ij vkj{k.k dh lqfo/kk mlh jkT; ls izkIr gksxh] ftl jkT; ls vkosnd dk ewy :i ls
laca/k gSA e/;izns'k 'kklu }kjk ns; vkj{k.k lqfo/kk dh ik=rk ugh gksxh] fdUrq ;g tkfr izek.k i= dsUnz ljdkj dh lsokvksa@laLFkkvksa vkfn esa vkj{k.k dk
ykHk izkIr djus ds fy;s ekU; gksaxsA
Learned Counsel for the petitioner has submitted that after interim order dated 1.9.2016 she was permitted to participate in the counseling and
thereafter she got admission in the Government College of Nursing, Indore and at present seeking prosecuting her study in B.Sc. Nursing four year
degree course and submitted that in view of the admission granted to her she may be permitted to continue her study as a reserved category candidate
and prayed for disposed of the writ petition.
Per contra, Shri Rohit Kumar Mangal, learned Government Advocate has submitted that Clauses 4, 5.2 (i) & (ii) and 8.11 (i) & (iii)Â are very
clear and specific. The power of this Court is to interpret the rule and not to supplement or supplant the same. This Court while exercising the
jurisdiction under Article 226 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post
and prayed for dismissal of the writ petition.
To counter the aforesaid, Shri Ukhale, learned Counsel for the petitioner has submitted that there is no dispute with regard to the aforementioned
proposition of law. What, however, is necessary for applying the principles of interpretation of statute is to take recourse to the literal interpretation
and only when the same would result in absurdity or anomaly, other principles, depending upon the nature of the statute, may be applied and submitted
that if this Court is not inclined to interpret the notification in the manner as the petitioner interpreting then his relief No.3 be granted so that she may
complete her study.
The question whether a person, who is a Scheduled Caste in the State where she was born will not be entitled to the benefit of reservation after
marriage in the State where her husband is living despite the fact that the husband also belongs to Scheduled Caste and the particular Caste falls in the
same reserved category in the State of migration and that she is a permanent resident of that State has been considered in the case of Marri Chandra
Shekhar Rao versus Dean, Seth G.S. Medical College and others reported in (1990) 3 SCC 130, Action Committee on Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another versus Union of India and another reported in (1994) 5 SCC 244 and
Subhash Chandra and another versus Delhi Subordinate Services Selection Board and others reported in (2009) 15 SCC 458.
Articles 341 and 342, which have bearing on thedecision of the question arising in this writ petition, read as under:
“341. Scheduled Castes.â€"(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.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or
tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any
subsequent notification.
Scheduled Tribes.â€" (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 communities or parts of or groups within tribes or tribal communities which shall for
the purpose of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal
community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied
by any subsequent notification.â€
The above reproduced articles enjoin that the President after consultation with the Governor where the States are concerned, by public
notification, may specify the tribes or tribal communities or parts of or groups of tribes or tribal communities, which shall be deemed to be Scheduled
Castes in relation to that State under Article 341 or Scheduled Tribes in relation to that State under Article 342.
In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and others (supra), the Constitution Bench of Apex Court was called upon to
consider whether the petitioner, who was a member of Scheduled Tribe in the State of Andhra Pradesh was entitled to admission in MBBS course in
Maharashtra against the quota reserved for Scheduled Tribes. The petitioner was born in Tenali in the State of Andhra Pradesh and belonged to the
Gouda community also known as “Goudu†which is recognised as “Scheduled Tribe†in the State of Andhra Pradesh. The father of the
petitioner was issued a Scheduled Tribe Certificate by the Tahsildar, Tenali, Andhra Pradesh. He was appointed in the Fertilizer Corporation of India,
a public sector undertaking. On the 19th June, 1978, the petitioner's father joined Rashtriya Chemicals and Fertilizers Ltd., a Government of India
undertaking, under the quota reserved for Scheduled Tribes. He was posted in Bombay. As a consequence, the petitioner started living in Bombay. He
completed his education in Bombay. For the academic year 1989-90, he submitted applications for admission in three medical colleges run by the
Bombay Municipal Corporation and one medical college run by the State of Maharashtra and sought the benefit of reservation in favour of Scheduled
Tribes. His claim was not accepted on the ground that he does not belong to Scheduled Tribe of Maharashtra. After examining the scheme of the
relevant Constitutional provisions, Apex Court observed:
“It appears that Scheduled Castes and Scheduled Tribes in some States had to suffer the social disadvantages and did not have the facilities for
development and growth. It is, therefore, necessary in order to make them equal in those areas where they have so suffered and are in the state of
underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or
developed sections of the community. Extreme social and economic backwardness arising out of traditional practices of untouchability is normally
considered as criterion for including a community in the list of Scheduled Castes and Scheduled Tribes. The social conditions of a caste, however,
varies from State to State and it will not be proper to generalise any caste or any tribe as a Scheduled Tribe or Scheduled Caste for the whole country.
This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other
Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking
into consideration the interest and wellbeing of the Scheduled Castes and Scheduled Tribes in the country as a whole.
It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal
atmosphere. But if sufficiently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially
disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however,
are problems of social adjustment i.e. how far protection has to be given to a certain segment of socially disadvantaged community and for how long
to become equal with others is a matter of delicate social adjustment. These must be so balanced in the mosaic of the country’s integrity that no
section or community should cause detriment or discontentment to other community or part of community or section. 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 in order to become equal
with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the
community who suffer from disabilities in those areas. 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.â€
In Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of
India and another (supra), another Constitution Bench of Apex Court considered a similar issue. The question framed in that case was:
“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 the
persons belonging to the Scheduled Castes and/or Scheduled Tribes in State B.†The aforesaid question was considered in the backdrop of
certificate, circulars and letters issued by the Government of India and consequential instructions issued by the State of Maharashtra indicating that
members belonging to the Scheduled Castes and Scheduled Tribes of other States shall not be entitled to the benefits and privileges accorded by the
State of Maharashtra unless he or she is shown to be 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. The Constitution Bench referred to the relevant Constitutional provisions including Articles 341 and 342,
the judgment of the earlier Constitution Bench in Marri Chandra Shekhar Rao’s case and observed:
“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 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 Constitutionâ€.
The issue was again considered in S. Pushpa and others v Sivachanmugavelu and others (2005) 3 SCC 1. The facts of that case was that the
Directorate of Education, Government of Pondicherry had issued an advertisement for making recruitment of 350 General Central Service Group ""C
posts of Secondary Grade of which 56 posts were reserved for Scheduled Castes. In response to the advertisement, the employment exchange
sponsored the names of candidates of various categories including Scheduled Caste. The employment exchange also sponsored some names of
Scheduled Caste candidates from neighbouring employment exchanges as sufficient number of Scheduled Caste candidates were not available in
Yanam and Mahe region of the Union territory of Pondicherry. Out of 55 selected candidates of Scheduled Caste, 29 produced community
certificates from the Governments of Tamil Nadu, Andhra Pradesh and Kerala, based on which the revenue authority of Pondicherry had issued
community certificates to them. The remaining 26 candidates produced community certificates from the revenue authority of Pondicherry. The
respondents challenged the selection of aforesaid Scheduled Caste candidates mainly on the ground that a migrant Scheduled Caste candidate
belonging to another State is not eligible for appointment on a post which is reserved for Scheduled Caste candidate of the Union Territory of
Pondicherry. The Central Administrative Tribunal relied upon the judgments in Marri Chandra Shekhar Rao’s case and Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of India and another (supra)
and held that the Scheduled Castes who migrated to the Union Territory of Pondicherry after the issuance of Presidential notification, which has
specified Scheduled Castes in terms of Article 341 of the Constitution cannot claim the benefit of reservation in the services of the Government of
Pondicherry. Accordingly, the selection and appointment of migrant Scheduled Caste candidates was set aside and a direction was issued to review
the selection process. The three Judge Bench of Apex Court referred to the judgments of the Constitution Bench in Marri Chandra Shekhar
Rao’s case and the Action Committee’s case and observed:
“Part XVI of the Constitution deals with special provisions relating to certain classes and contains Articles 330 to 341. Articles 330 and 332 make
provision for reservation of seats in the House of the People and Legislative Assemblies of the States respectively, for Scheduled Castes and
Scheduled Tribes. Similar provisions have been made for Anglo-Indian community in Articles 331 and 333.Article 338 provides that there will be a
Commission for the Scheduled Castes to be known as National Commission for the Scheduled Castes and it also provides for its composition, powers
and duties. Clause (2) ofArticle 330 provides that the number of seats reserved in the States or Union Territories for Scheduled Castes or Scheduled
Tribes shall bear, as nearly as may be, the same proportion to the number of seats allotted to that State or Union Territory in the House of the People
as the population of the Scheduled Castes in the State or Union Territory or of the Scheduled Tribes in the State or Union Territory, as the case may
be, in respect of which seats are so reserved, bears to the total population of the State or Union Territory. Similar provision for reservation of seats in
favour of SC/ST in the Legislative Assembly of any State is contained in clause (3) of Article 332 of the Constitution. Therefore, in order to ascertain
the number of seats which have to be reserved for Scheduled Castes or Scheduled Tribes in the House of the People or in the Legislative Assembly, it
is absolutely essential to ascertain precisely the population of the Scheduled Castes or Scheduled Tribes in the State or Union Territory. A fortiori, for
the purpose of identification, it becomes equally important to know who would be deemed to be Scheduled Caste in relation to that State or Union
Territory. This exercise has to be done strictly in accordance with the Presidential Order and a migrant Scheduled Caste of another State cannot be
taken into consideration otherwise it may affect the number of seats which have to be reserved in the House of the People or Legislative Assembly.
Though, a migrant SC/ST person of another State may not be deemed to be so within the meaning of Articles 341 and 342 after migration to another
State but it does not mean that he ceases to be an SC/ST altogether and becomes a member of a forward caste.Clauses (1) and (2) of Article 16
guarantee equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to
(5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary
power on the State to make reservation in the matter of appointments in favour of “backward classes of citizens†which in its opinion are not
adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the
backward classes to claim reservation. Article 16(4)is not controlled by a Presidential Order issued under Article 341(1) or Article 342(1) of the
Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union Territory only for such Scheduled
Castes and Scheduled Tribes which are mentioned in the Schedule appended to the Presidential Order for that particular State or Union Territory.
This article does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order issued for a particular
State alone would be recognised as backward classes of citizens and none else. If a State or Union Territory makes a provision whereunder the
benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union
Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by
virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant
Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order issued for such Union Territory. The UT of
Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are
eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be
contrary to any provision of law.â€
In view of the law laid down by the Apex Court in the case of S. Pushpa and Ors. V. Sivachanmugavelu & Ors. (supra) and Marri Chandra
Shekhar Rao's (supra), we cannot accept the prayer No.1 and 2 of the petitioner nor direct the respondents for issuance of caste certificate in her
favour nor we can issue directions to the respondents to modify the notificaiton dated 13.1.2004 to the extent that it should inclusive for the girls of
reserved category who born and brought up in any other State, but married to the person who is permanent resident of the State. On 1.9.2016, an
interim order has been passed in favour of the petitioner and on the basis of the aforesaid interim order, she was permitted to participate in counseling
at Government College of Nursing and was granted admission and, therefore, we permit her to complete the course of the nursing from the
Government College, but she will not get any further benefit to treat as Scheduled Caste in the State of M.P. as her husband also belongs to the same
caste (Kori), which is again a Scheduled Caste.
In view of the above, the petition is disposed of subject to the decision of SLP Civil Appeal No(s).8425 of 2013 (Ranjana Kumari V/s. State of
Uttaranchal & Ors.) arising out of SLP (c) 33724 of 2011.
No costs.