Ramesh Kumar Datta, J.
1. Heard learned Counsel for the parties.
2. The petitioner seeks quashing of the order dated 19.6.2000 (Annexure-4) of the DIG, BMP, Central Zone, Patna by which the representation of the petitioner to treat him in the category of a Scheduled Caste and accordingly, appoint him on the post of constable, has been rejected.
3. The petitioner claims to be a Scheduled Caste belonging to the State of U.P. In 1998 pursuant to advertisement No. 1 of 1998 for selection and appointment on the post of constable in BMP, the petitioner applied and was found fit by the Constable Selection Committee in all the tests. The height of the petitioner is 174.5 CM yet he was not shown in the list of successful candidates, whereas, other candidates belonging to Scheduled Caste category having height of 173.5 were selected. The petitioner filed a representation before the DIG, BMP, Central Zone but the same not having been considered, he approached this Court by filing CWJC No. 7804 of 2000 which was disposed of by order dated 22.8.2000 with the direction that if the petitioner files a representation and it is found that persons belonging to the same category having lesser height than the petitioner has been appointed, then the DIG will pass appropriate order in respect to the petitioner. The petitioner filed his representation which was rejected by the impugned order dated 19.9.2000 of the DIG, BMP, Central Zone, Patna.
4. Learned Counsel for the petitioner submits that the reasons given in the order of the DIG are non est and contrary to the law laid down by a learned Single Judge of this Court. It is pointed out that the only ground for rejection of his representation is that he belongs to Scheduled Caste category in the State of U.P. and thus his claim could not be considered as a Scheduled Caste candidate in the State of Bihar and he must be treated as a general candidate in this State. In this regard learned Counsel relies upon a decision of this Court passed on 8.8.2001 in CWJC No. 13190 of 2000 in which it has been held that if a particular caste is treated as Scheduled caste or OBC etc., as the case may be, in the particular State, there can be no justification to deny the benefit of reservation simply because the caste certificate has been obtained from another State, which is the home State or domicile State of the person concerned. Relying on the said decision, learned Counsel for the petitioner states that the petitioner belongs to Dhobi caste which is recognised as Scheduled Caste both in the State of U.P. as well as in the State of Bihar and thus the authorities are not justified in not giving him the benefit as Scheduled Caste candidate.
5. Counsel also submits that the respondents cannot be permitted to rely upon the Personnel and Administrative Reforms Department letter dated 11.6.1996 addressed to the Secretary, Bihar Public Service Commission in which the decision of the State Government has been communicated that for appointment in the State services, the benefit of reservation will be available to only such candidates who are residents of State of Bihar. It is submitted that the said letter has been considered in the decision of this Court in the case of Ram Adhin Singh Yadav and Anr. v. State of Bihar and Ors.(supra) in which it has been held that it is violative of Articles 14 and 16 of the Constitution of India.
6. Learned Counsel for the State, on the other hand, submits that the said decision in the case of Ram Adhin Singh Yadav (supra), the attention of this Court was not drawn to the Constitution Bench decision of the Supreme Court in the case of Action Committee on issue of caste certificate to scheduled castes and scheduled Tribes in the State of Maharashtra and Anr. v. Union of India and Anr. : (1994)5SCC244 , in which it has been laid down to the contrary and such exclusion of Scheduled Caste/ Scheduled Tribe or Backward classes of another State has been upheld by the Constitution Bench. In the said decision it was clearly laid down in para 16 of the judgment as follows:
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. That is why in answer to a question by Mr. Jaipal Singh, Dr. Ambedkar answered as under:
He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them....
Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin.
7. Learned Counsel also relies upon the fact that the Bihar Reservation of Vacancies in posts and Services (for Scheduled Castes, Scheduled Tribes and other backward Classes) Act, 1991 has since been amended by Bihar Act 15 of 2003 by which the third proviso has been added in Sub-section (2) of Section 4 of the Act with retrospective effect from 11.6.1996 in the following terms:
Provided further that the candidates residing out of the State of Bihar shall not claim for benefits of reservation under this Act.
8. In view of the aforesaid amendment it is submitted by learned Counsel for the State that the said amendment will be applicable to the recruitment made in the advertisement No. 1 of 1998 and thus in any case the petitioner cannot be granted any benefit of reservation as a scheduled caste candidate in this State.
9. On a consideration of the rival submissions it has to be held that the petitioner is not entitled to be treated as scheduled caste candidate for recruitment to be made in the State of Bihar. The issue is no longer res integra and has been settled much earlier by a Constitution Bench of the Supreme Court in the case of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College : [1990]2SCR843 in which it has been clearly laid down that a person belonging to Scheduled Caste or Scheduled Tribe in relation to a State would require necessary protection and benefits in that State to bring about equality but the social environment of the State to which he migrates may not be the same as in the State of his origin and therefore he cannot claim the benefits and privileges available to Scheduled Castes and Scheduled Tribes in the State to which he migrates. For the said reason the contention of the petitioners of that case that on migration the caste or tribe of the person concerned does not change and if such person is denied the concessions, benefits and privileges available to Scheduled Castes and Scheduled Tribes in the State to which he migrates, such a denial would be in violation of Article 14 of the Constitution, since the right to equality and equal treatment would be denied, was rejected by the Constitution Bench. Subsequently, in the case of Action Committee (supra) the matter was reargued for a reference to a larger Bench but on consideration of the entire issue the Constitution Bench again observed that the matter requires no reconsideration by a larger Bench and held that it is in complete agreement with the interpretation of the provisions of Articles 341 and 342 of the Constitution in the similar-Constitution Bench judgment in the case of Marri Chandra Shekhar Rao (supra).
10. In view of the clear law laid down by the Constitution Bench of the Apex Court, no benefit can be taken by the learned Counsel for the petitioner from the order dated 8.8.2001 of this Court passed in the case of Ram Adhin Singh Yadav and Anr. (supra), wherein the said decision of the Supreme Court was not brought to the notice of this Court.
11. In view of the aforesaid decisions of the Supreme Court, it cannot be said that the letter dated 11.6.1996 of the State Government in the Personnel and Administrative Reforms Department addressed to the Secretary, Bihar Public Service Commission is violative of any provision of the Constitution and cannot be given effect to; and relying upon the same it is open to the authorities of the State not to grant the benefit of reservation to a candidate residing out side the State. The same letter now finds statutory support in view of the retrospective amendment to the provisions of the Bihar Reservation of Vacancies in posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 with effect from 11.6.1996 which is the date prior to the date of advertisement.
12. Thus, in any view of the matter, there is no merit in the case of the petitioner and accordingly, the writ application is dismissed.