R.M. Borde, J.
1 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2 Petitioners, in both the petitions, are challenging the orders passed by Respondent No.2-Committee invalidating their caste claim on the ground that parents of petitioners are originally residents of District Bider, which forms part of Karnataka State and that they have migrated to the State of Maharashtra after 10.08.1950 i.e. after enforcement of Constitution Scheduled Castes Order, 1950.
3 It is not disputed that parents and forefathers of petitioners are original residents of District Bider, the geographical area, which was forming part of erstwhile State of Hyderabad, before States Re-Organization. The part of District Bider, after re-organization of States in 1956, has become part of State of Karnataka. It is also not disputed that petitioners originally belong to an area which is pre-dominantly a Marathi speaking area, which presently forms part of State of Karnataka. The State of Maharashtra has claimed that 865 villages, presently included in the State of Maharashtra, which comprises of predominantly Marathi speaking population, shall in fact form part of State of Maharashtra. The State of Maharashtra has extended benefits to the residents of disputed 865 villages which presently form part of State of Karnataka after reorganization of States in the matter of education and employment. A Resolution has been passed by the State of Maharashtra on 25.04.2007 extending opportunity in employment to the residents of 865 disputed bordering villages in the cadre of primary teachers/Shikshan Sevaks. The Diploma in Education awarded by the State of Karnataka i.e. T.C.H. is equated with D.Ed. qualification recognised in the State of Maharashtra, thereby extending opportunity of employment to the eligible candidates from disputed 865 bordering villages.
4 A decision has also been taken by the State of Maharashtra, which is reflected in Government Resolution dated 10th July, 2008 to permit the residents of 865 bordering villages to apply for the posts coming within the purview of Maharashtra Public Service Commission, thus, extending opportunity of employment to the eligible candidates from disputed villages. The petitioners are originally residents of village Lakhangaon and Wanjarkheda, Tq.Bhalki, District Bider, which form part of District Bider and is included in 865 disputed bordering villages. It is also not disputed that parents of the petitioners have migrated to the State of Maharashtra and have settled in the State of Maharashtra.
5 The petitioner in Writ Petition No.3627/2011 has been admitted to B.A.M.S. Course against a seat reserved for Scheduled Caste category, whereas, petitioner in Writ Petition No.7138/2012 has been appointed as Staff Nurse as against a seat earmarked for Scheduled Caste category. Petitioners, in both the petitions, belong to âMaharâ, Scheduled Caste, which is recognised in both â the State of Maharashtra as well as State of Karnataka. The caste claims of the petitioners have been turned down by Respondent No. 2-Committee mainly on the ground that parents of the petitioners are original residents of District Bider, which form part of State of Karnataka and as such, petitioners are not entitled to claim benefits in the State of migration.
6 The issue arising in the matters is, as to whether the petitioners, who are belonging to âMaharâ Scheduled Caste, which stands recognised in both â the State of Maharashtra as well as State of Karnataka, having their origin in the region Bider district, a part of which, on States reorganization, has come to State of Maharashtra, whereas, part is included in the State of Karnataka, are entitled to claim benefits of reservation. The issue is no more res integra in view of decision of the Supreme Court in the matter of SudhakarVitthal Vs. State of Maharashtra, reported in 2004 (4) Mh.L.J. 784, as well as two decisions of the Division Bench of this Court in the matter of SantoshPadoti Vs. Caste Scrutiny Committee, reported in 2006 (Supp.), Bom.C.R. 797; and in the matter of Hitesh Dasiram Murkute Vs. State of Maharashtra and others, reported in 2007 (4) Bom.C.R. 784. In the matter of SudhakarVitthal Kumbhare, petitioner before the Apex Court was originally resident of village Pandhurna, District Chhindwara in Madhya Pradesh. After reorganization of States, the part of District Chandrapur, which was originally in the State of Madhya Pradesh, has become part of State of Maharashtra. The tribe âHalba, to which petitioner before the Supreme Court belongs, is recognized as scheduled tribe in both â the State of Maharashtra as well as State of Madhya Pradesh. The tribe claim of the petitioner therein was not forwarded to the Scrutiny Committee on the ground that he belongs to a region which forms part of State of Madhya Pradesh and in view of the decision in the matter of Action Committee On the Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra Vs. Union of India, reported in 1994 (5) SCC 244, he is not entitled to claim benefits in the State of migration. The Supreme Court, while dealing with the question, has observed in paragraph 5 of the judgment, thus:
â5 .... The question is as to whether the appellant being a Scheduled Tribe known as Halba / Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in the Chhindwara region, a part of which, on States reorganization, has come to State of Maharashtra, was entitled to the benefit of reservation? It is one thing to say that the expression âin relation to that Stateâ occurring in Article 342 of the Constitution of India should be given as effective or proper meaning so as to exclude the possibility that a tribe 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 Re-organization 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 Tribes 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.â
7 In the matter of SantoshPadoti Vs. Caste Scrutiny Committee (cited supra), the petitioner, who belongs to âGond tribe, was permanent resident of Charbhata, District Rajnandgaon, Madhya Pradesh and shifted and settled at Totladoh in State of Maharashtra. His tribe claim was turned down on the ground that he is not entitled to claim concessions of âGond scheduled tribe. Relying on the judgment in the matter of SudhakarVitthal (cited supra), the Division Bench of this Court directed the Scrutiny Committee to consider claim of the petitioner. It was also found by the Division Bench that by virtue of Constitutional Scheduled Tribe Order 1950, tribe âGond has been considered as scheduled tribe in both the States i.e. State of Maharashtra as well as State of Madhya Pradesh and as such, petitioner, in the petition before the Division Bench, was held entitled to claim benefits accruable to âGond Scheduled Tribe.
8 In the instant matter also, âMahar Scheduled Caste is recognized in both the States. The degree of disadvantages of various elements which constitute the input for specification may not be totally different and both the States, after reorganization, have agreed for inclusion of âMahar Scheduled Caste having regard to the said fact. Petitioners, therefore, who belong to scheduled caste, which is recognized in both the States and hail from a region which form part of erstwhile Hyderabad State, a part of which is presently included in the State of Maharashtra, are entitled to claim benefits of reservation in the State of migration i.e. in the State of Maharashtra.
9 Reliance can be placed on the judgment of the Division Bench in the matter of Hitesh Dasiram Murkute Vs. State of Maharashtra and others, reported in 2007 (4) Bom.C.R. 784. The petitioner, in the reported matter, was a student of Engineering and belong to âKalar Other Backward Class and the Scrutiny Committee refused to examine his claim since he was a migrant. In the reported matter, petitioners family is original resident of Madhya Pradesh and since he could not produce proof of residence in the State of Maharashtra prior to 1950, the Committee refused to decide his caste claim in the light of Government Resolutions dated 24.08.1995 and 21.08.1996. The Division Bench, while dealing with the issue, has considered the judgment in the matter of SudhakarVitthal (cited supra), so also the judgment of the Supreme Court in the matter of MarriChandra Vs. Dean, S.G.S. Medical College, (1990) SCC 130, Action Committee On the Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra Vs. Union of India, reported in 1994 (5) SCC 244, and the Division Bench judgment in the matter of BankimchandraVs. State of Maharashtra, reported in 2006 (Supp.) Bom.C.R. 797, and has arrived at following conclusions:
âConclusions:
41 To sum up:
(i) It is necessary to give full effect to both the expressions âfor the purpose of this constitutionâ as well as âin relation to the Stateâ, 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 visavis 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 âin 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 migrants 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 get 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 Marrie Chandras case the caste âGoudaâ 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 explaning and following the ratio in Marrie Chandras 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 âsame nomenclatureâ and avoiding the use of words âsame casteâ. This implies that if persons belong to the âsame casteâ they were not to be denied the benefits.
(ix) Sections 26 and 27 of the Bombay State Reorganization Act merely amend the schedule 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 Vs. 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.â
10 In view of judgment of the Supreme Court in Sudhakarscase, a migrant belonging to a community which was recognised as Scheduled Caste or Scheduled Tribe in any locality, which has been divided upon reorganization of States, the migrant would be entitled to the benefits of reservation even in the State, in which part of locality other than his place of origin, has been included.
11 In the instant matter, parents of the petitioners originally belong to Bider district. The part of the locality, to which petitioners belong, has been included in District Bider, which is presently included in the State of Karnataka, was part of erstwhile State of Hyderabad. The part of State of Hyderabad comprising of Marathwada region has been included in the State of Maharashtra after reorganization. The locality, to which petitioners originally belong, is predominantly Marathi speaking locality which forms part of bordering region of State of Karnataka. The State of Maharashtra has put forth claim in respect of 865 disputed villages which presently forms part of State of Karnataka. Not only this, the State of Maharashtra has extended benefits to the residents of those bordering villages in the matter of education and employment in the State of Maharashtra.
12 In this view of the matter and considering the legal position emerging from the judgment of the Apex Court in the matter of Sudhakar(cited supra), we are of the considered opinion that Respondent No.2-Committee had fallen in error in invalidating caste claims of the petitioners only on the ground that original place of residence of parents of the petitioners presently forms part of State of Karnataka. Both the petitions, therefore, deserves to be allowed.
13 Both the Writ Petitions are allowed. Impugned orders passed by Respondent No.2-Scrutiny Committee are quashed and set aside and the matters are remitted back to Respondent No.2-Committee for reconsideration. Respondent No.2-Committee shall decide caste claims of respective petitioners considering evidence placed before the Committee and after extending opportunity of hearing to the petitioners for putting forth their contentions afresh, in accordance with provisions of law. The caste claims of the petitioners shall not be rejected only on the ground that parents of petitioners originally belong to a region which presently forms part of State of Karnataka, since the aforesaid region, prior to States reorganization was forming part of State of Hyderabad, part of the locality of said District presently forms part of State of Maharashtra. Until decision by Respondent No.2-Committee in respect of validation of caste claim of petitioners, no adverse action shall be taken against them.
14 Rule is accordingly made absolute. There shall be no order as to costs.