U.P. Public Service Commission, Allahabad and State of U.P. vs Sanjay Kumar Singh

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

P. Venkatarama Reddi, J.

Delay condoned and leave granted in S.L.P.(Civil) No. 16466 of

2001 filed by the State of U.P.

Aggrieved by the judgment of the High Court at Allahabad, the

present appeals are preferred by the U.P. Public Service Commission

and the State of U.P. Pursuant to an advertisement issued on

31.12.1994 by the U.P. Public Service Commission for Combined

State/Upper Subordinate Examination, the respondent herein

submitted his application as a Scheduled Tribe candidate. He passed

the preliminary and main examination held in June/July, 1996. He

was called for interview for consideration to the post of History

Lecturer in the vacancy reserved for Scheduled Tribes. In the results

published on 14.11.1996, the respondent was declared successful.

However, it is the case of the Service Commission that on a recheck

of the documents furnished by the respondent, it was found that the

Naga tribe to which the respondent belongs is not a recognised

Scheduled Tribe in the State of U.P. In the Presidential order issued

under Article 342 of the Constitution as well as the State

Government's notification, only five tribes are mentioned as

Scheduled Tribes. Therefore, the appellant-U.P. Public Service

Commission did not send up its recommendation for recruitment of

the respondent. At the same time, on 1.7.1997 the Commission

intimated to the respondent that his selection was cancelled. The

respondent, therefore, filed the writ petition under Article 226 of the

Constitution with a prayer to quash the order of the Public Service

Commission dated 1.7.1997 and to direct the respondents in the writ

petition to offer the appointment to him. This writ petition was allowed

by the impugned judgment of the Division Bench of the High Court.

The High Court was of the view that there was no bar under

any of the provisions to extend the benefit of reservation to

Scheduled Tribe candidates of other States. The High Court

observed:

"…There is no law and no provision has been brought to

the notice of the Court which will limit the said reservation

quota to be extended only to citizen of the State of U.P…"

The High Court directed the State of U.P. to offer the

appointment to the respondent on the footing that he is a S.T.

candidate.

It is not in dispute that Naga tribe is not specified as one of the

Scheduled Tribes in the State of U.P. The respondent claimed that

his forefathers were residents of Old Ngaulong village of Kohima

District in Nagaland and they initially migrated to Chhapra in Bihar

and the father of the respondent shifted his residence to Allahabad

and after rendering service in the Army, settled down at Allahabad.

The respondent, pursued his studies in Allahabad. Based on the

certificates issued by the Nagaland authorities, the Tehsildar, Sadar,

Chial Tehsil, Allahabad issued a certificate on 18.1.1996 to the effect

that the respondent "has been accorded recognition as Scheduled

Tribe-Naga as per the Scheduled Tribes Order of 1970 relating to

Nagaland".

Thus, the certificate affirms the fact that respondent is a Naga

tribal which is a notified Scheduled Tribe in the State of Nagaland.

During the pendency of the writ petition, the genuineness of the

certificate issued by the Nagaland authorities was confirmed through

enquires made with the Nagaland authorities. The question is

whether respondent can claim the benefit of reservation in public

service in the State of U.P. as a member of Scheduled Tribe though

'Naga' is not specified to be a Scheduled Tribe in that State.

It may be noted that the reservation in favour of Scheduled

Tribes to the extent of 2% is provided for by the U.P. Public Services

(Reservation for Scheduled Castes, Scheduled Tribes and other

Backward Classes) Act, 1994. There is no particular definition of

'Scheduled Tribe' in the Act. However, the term 'Scheduled Tribe' can

only be understood in accordance with the provisions of Article 342

read with the notifications issued thereunder as interpreted by this

Court.

The question arising in this case is no longer res integra.

Almost the same question was considered in Action Committee on

Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes

in the State of Maharashtra Vs. Union of India [(1994) 5 SCC 244].

The following question arose for consideration:

"Where a person belonging to a caste or tribe specified

for the purposes of the Constitution to be a Scheduled

Caste or a Scheduled Tribe in relation to State A migrates

to State B where a caste or tribe with the same

nomenclature is specified for the purposes of the

Constitution to be a Scheduled Caste or a Scheduled

Tribe in relation to that State B, will that person be entitled

to claim the privileges and benefits admissible to persons

belonging to the Scheduled Castes and/or Scheduled

Tribes in State B?"

The Constitution Bench answered that question in the negative.

Interpreting Articles 341 and 342, the Court observed:

…"What is important to notice is that the castes or tribes

have to be specified in relation to a given State or Union

Territory. That means a given caste or tribe can be a

Scheduled Caste or a Scheduled Tribe in relation to the

State or Union Territory for which it is specified."…

After referring to another decision of the Constitution Bench in

Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College

[(1990) 3 SCC 130], Ahmadi, J. speaking for the Court observed thus:

"We may add that considerations for specifying a

particular caste or tribe or class for inclusion in the list of

Scheduled Castes/Scheduled Tribes or backward classes

in a given State would depend on the nature and extent of

disadvantages and social hardships suffered by that

caste, tribe or class in that State which may be totally non

est in another State to which persons belonging thereto

may migrate. Coincidentally it may be that a caste or tribe

bearing the same nomenclature is specified in two States

but the considerations on the basis of which they have

been specified may be totally different. So also the

degree of disadvantages of various elements which

constitute the input for specification may also be totally

different. Therefore, merely because a given caste is

specified in State A as a Scheduled Caste does not

necessarily mean that if there be another caste bearing

the same nomenclature in another State, the person

belonging to the former would be entitled to the rights,

privileges and benefits admissible to a member of the

Scheduled Caste of the latter State "for the purposes of

this Constitution". This is an aspect which has to be kept

in mind and which was very much in the minds of the

Constitution-makers as is evident from the choice of

language of Articles 341 and 342 of the Constitution."…

The ruling in the above case applies with greater force to the

present case for the reason that it is not the case of the writ petitioner

that there is any caste or tribe bearing the same nomenclature of

'Naga' in U.P. State. In Marri Chandra Shekhar Rao Vs. Dean, Seth

G.S. Medical College case, supra, it was pointed out that the

"Scheduled Castes and the Scheduled Tribes belonging to a

particular area of the country must be given protection so long as and

to the extent they are entitled to, in order to become equals with

others but those who go to other areas should ensure that they make

way for the disadvantaged and disabled of that part of the community

who suffer from disabilities in those areas."

The same view was taken in a recent decision in Municipal

Corporation of Delhi Vs. Veena [(2001) 6 SCC 571], though it was a

case of OBCs. Suffice it to quote the following passage occurring in

that judgment.

…" The matters that are to be taken into considerationfor

specifying a particular caste in a particular group

belonging to OBCs would depend on the nature and

extent of disadvantages and social hardships suffered by

that caste or group in that State. However, it may not be

so in another State to which a person belonging thereto

goes by migration. It may also be that a caste belonging

to the same nomenclature is specified in two States but

the considerations on the basis of which they had been

specified may be totally different. So the degree of

disadvantages of various elements which constitute the

data for specification may also be entirely different."…(per

Rajendra Babu, J.)

Reliance was placed by the respondent's counsel on the

Government of India, Home Ministry's Circular dated 25.11.1982

which enables the concerned authorities of the State to which the

Scheduled Tribes migrated, to issue the S.C. and S.T. certificates.

This Circular and the later clarification were also referred to in Action

Committee case (supra) and the Court observed thus:

…"By this clarificatory order forwarded to Chief

Secretaries of all States/Union Territories, the only facility

extended was that the prescribed authority of the

State/Union Territory to which a person had migrated was

permitted to issue the certificate to the migrant on

production of the genuine certificate issued to his father

by the prescribed authority of the State of the father's

origin provided that the prescribed authority could always

enquire into the matter through the State of origin if he

entertained any doubt. The certificate to be so issued

would be in relation to the State/Union Territory from

which the person concerned had migrated and not in

relation to the State/Union Territory to which he had

migrated. Therefore, the migrant would not be entitled to

derive benefits in the State to which he had migrated on

the strength of such a certificate. This was reiterated in a

subsequent letter dated 15.10.1987 addressed to Smt.

Shashi Misra, Secretary, Social Welfare, etc., in the State

of Maharashtra. In paragraph 4 of that letter it was

specifically stated:

"Further, a Scheduled Caste person, who has

migrated from the State of his origin, which is

considered to be his ordinary place of

residence after the issue of the first

Presidential Order, 1950, can get benefit from

the State of his origin and not from the State

to which he has migrated."

* * * * * *

It will thus, be seen that so far as the Government of India

is concerned, since the date of issuance of the

communication dated 22.3.1997, it has firmly held the

view that a Scheduled Caste/Scheduled Tribe person who

migrates from the State of his origin to another State in

search of employment or for educational purposes or the

like, cannot be treated as a person belonging to the

Scheduled Caste/Scheduled Tribe of the State to which

he migrates and hence he cannot claim benefit as such in

the latter State."

The contention of the appellants should therefore be accepted

and the appellant cannot be treated as a Scheduled Tribe candidate

so as to qualify himself to claim reservation against the vacancy

reserved for Scheduled Tribe in public services in the State of U.P.

The view of the High Court cannot be sustained as it goes counter to

the pronouncements of this Court. Hence it is set aside and the

appeals are allowed without cost. However, in the peculiar

circumstances of the case, the ends of justice would be met if the

appellants are directed to consider the case of the respondent in

general category and if in comparison with the general category

candidates selected, the respondent had secured higher

marks/grading, he should be offered appointment to an appropriate

post against one of the existing vacancies.