Judgment:
ORDER
Abhay M. Naik, J.
1. Short facts leading to the petition are that the petitioner belongs to Scheduled Tribe. She passed M.B.B.S. Examination in April, 2004. After completion of internship and house job, she further appeared in the Pre. P.G. Examination in April, 2006 wherein she declared successful. She thus, became eligible for admission to post graduate course through counselling. A notice for counselling was published in a Daily Newspaper Dainik Bhaskar as contained in Annexure P-2. According to it, the counselling was to be held from 14th of May to 19th of May, 2006. Counselling for In-service and S.T. Category was to be held on 14th and 15th of May, 2006.
2. The merit list of the candidates as contained in Annexure P-3 of the S.T. category was affixed on the notice board wherein the name of respondent No. 4 appeared at serial No. 2 whereas the name of the petitioner appeared at serial No. 18. The respondent No. 4 being at serial No. 2 in the list was allotted the seat of M.S. Gynic whereas the petitioner was allotted Diploma in Gynaecology and Obstetrics.
3. Allotment of P.G. Seat to respondent No. 4 in S.T. category is challenged in the present writ petition on the ground that she does not belong to Scheduled Tribe and is not entitled to the P.G. seat of M.S. Gynaecology and Obstetrics. It has been contended that other candidates of the merit list securing position at serial Nos. 3 to 17 got the seats of their choice and no one is superior to claim the S.T. seat of M.S. Gynaecology and Obstetrics in preference to the petitioner. Thus, the petitioner being entitle to the said seat has prayed for quashment of allotment of the subject seat to the petitioner and has further prayed for its allotment to her.
4. Respondent Nos. 1 and 2 submitted their return admitting thereby that the subject seat was meant for S.T. candidates. It has been contended that in exercise of powers conferred by Clause (i) of Article 342 of the Constitution of India, the Hon'ble President of India after consultation with the Governor and head of the States concerned has been pleased to make constitution (Scheduled Tribes) Order, 1950. In the said order different tribes or tribal communities, or parts of, or groups within tribes or tribal communities have been deemed to be the Scheduled Tribes so far as regarding members thereof, residents in localities specified in relation to them. In the said order two entries mentioned names of Meena (i) at item No. 8 in part 7 of the said order and another (ii) at item No. 32 in the same part. Both the entries denoted the caste Meena as part of Scheduled tribe as per the order of 1950. By the amendment and subsequent notification dated 8-1-03, the caste Meena was excluded and deleted only from item No. 32, whereas the caste Meena (Bhil Meena) was maintained in the said order which according to the respondent Nos. 1 and 2 includes caste Meena to which the respondent No. 4 belongs. It is further mentioned in the return that the father of the respondent No. 4 is an officer of the All India Services (IPS) and State of M.P. has been allotted to him as his cadre by the Ministry of Public Grievances and Pension (Department of Personnel and Training). A copy of the said cadre allotment is Annexure R-1/2. Reliance has been further placed on the guidelines (Annexure R-1/3) which reveal that the State Government has taken care of those cases where the member of the SC/ST who is in All India Services and moving involuntarily to the State of M.P. According to the said circular their interests and privileges as a member of the SC/ST cannot be jeopardized. Here is the case where the father of the respondent No. 4 had to migrate involuntarily due to the cadre allotment, therefore, the respondent No. 4 became the member of the ST for the purposes of M.P. also and the privileges had to follow due to inclusion of caste Meena in the ST category as well as due to the impact and implications of the Government instructions in this regard. Further reliance has been placed on circular dated 1-4-98 (Annexure R-1/4) which reads that the caste Meena has already been included in the S.T. list. Accordingly, respondent No. 4 has rightly been allotted the subject seat since she was superior to the petitioner on account of having been placed at serial No. 2 in the merit list.
5. It has been further mentioned in the return that the Director Medical Education has already referred the matter to the State Level Screening Committee (SC/ST) vide R-1/5 and the matter pertaining to the caste of respondent No. 4 is pending consideration before the said Committee. On representation of the petitioner having been made before the National Commission for Scheduled Tribes, New Delhi the DME has submitted the Fact Furnishing Note to the National Commission vide AnnexureR-1/7. Thus, due care has already been taken and no illegality has been committed in granting the subject seat to the respondent No. 4.
6. In the return submitted by respondent No. 3, it is mentioned that the respondent No. 4 was admitted in the entrance examination in the category of Scheduled Tribes on the basis of certificate produced by her alongwith with the application. The respondent No. 3 has no power to examine the propriety of the said certificate and in case the said certificate is either improper or false the responsibility lies with the respondent No. 4 and the authority issuing such certificate. It has been further averred in the return that in case the respondent No. 4 was not in the Scheduled Tribes category, the allotment of the subject seat made to her in the reserved category is absolutely wrong and her admission is liable to be cancelled.
7. Respondent No. 4 submitted her return stating thereby that she was included in the Presidential notification in Meena community which formed a part of the notified ST category in the State of M.P. till 8-1-03 and accordingly, certificate was issued in her favour. Hon'ble President of India vide Notification (Annexure R-4/3) issued a list of SC and ST in the State of Rajasthan wherein at serial No. 9 'Meena' is included in the category of ST for the State of Rajasthan. Accordingly, on 26-7-77 the Competent Authority of District Alwar issued a caste certificate in favour of father of the respondent No. 4. It has been further submitted that on 1-7-1977 the Presidential notification was published which included Meena community as ST for State of M.P. which was in force upto 8-1-2003. Father of respondent No. 4 was selected as an IPS Officer and on 4-9-1986 vide Annexure R-4/6 his services were allotted to the cadre of State of M.P. since 1986 father of respondent No. 4 has been serving as an IPS Officer in the State of M.P. A circular was issued by GAD which goes to show that in case of involuntary migration of a person from any other State to M.P., caste certificate can be issued if the caste of the person is included in the State of M.P. in S.T. category and such circular shall be valid for all purposes including higher education, employment etc. It is further averred that once such a certificate is granted, it shall remain valid until it is cancelled and/or revoked by a Competent Authority. It has been further clarified vide Annexure R-4/10, dated 1-4-98 that persons who make involuntary migration from other states to State of M.P. the members of such families shall be entitled to avail the benefit of reservation and obtain caste certificates provided their caste/tribe is included in the list of such castes/tribes prescribed for M.P. The policy further contemplates that in case of involuntary migration by the family of an officer borne on All India Services cadre, the dependent members shall be entitled to avail all the benefits including grant of caste certificate provided their caste/tribe is included in such castes/tribes for the State of M.P. It is also submitted that on 18-3-1999 the Competent Authority at Bhopal had issued a temporary caste certificate in favour of respondent No. 4 because the Meena community was included in ST for M.P. as per Presidential notification (Annexure R-4/5) and finally permanent caste certificate was issued at Gwalior. In pursuance to mandate of the Apex Court, circulars (Annexures R-4/8, R-4/9 and R-4/10) have been issued. Respondent No. 4 accordingly, belongs to ST category in the State of M.P. The petitioner has already completed M.B.B.S. from the State of M.P. as S.T. category candidate. The question of respondent No. 4 being a candidate belonging to ST category (Meena) for the State of M.P. is required to be gone into, if necessary by the committee constituted by the State as it is the only expert body constituted for this purpose.
8. Smt. Meena Chaphekar, learned Counsel for the petitioner, Shri Pathak, learned Government Advocate for respondent Nos. 1 and 2 and Shri Amit Agrawal, learned Counsel for respondent No. 4 made their respective submissions which are being considered in the light of the material on record.
9. The moot question for consideration in the petition is whether respondent No. 4 belongs to ST category and what would be the scope of interference in such matter by this Court.
10. It is necessary to mention various notifications and circulars relating to the position of caste 'Meena' as ST category. After enforcement of the Constitution of India the Constitution (Scheduled Tribes) Order, 1950 was promulgated in exercise of powers conferred by Clause (i) of Article 342 of the Constitution of India by Hon'ble President after due consultation. Part VIII of the said order relates to State of M.P. wherein 'Bhil Mina' was shown as S.T. category in State of M.P. This entry appeared at serial No. 8 of the said order. At serial No. 32 of the same part caste 'Meena' was shown as S.T. for the purpose of Sub Division Sironj District Vidisha. Entry at serial No. 32 has been omitted by Act 10 of 2003 as revealed in the Constitution (Scheduled Tribes) Order, 1950, as contained in Annexure R-1/1 with effect from 8-1-2003.
11. It has been contended by the respondents that in view of law laid down by the Supreme Court of India in the case of State of Maharashtra and Ors. v. Ravi Prakash Babulalsingh Parmar and Anr. : AIR2007SC295 , this Court has no jurisdiction to decide the validity of the caste certificate dated 21-3-03 contained in Annexure R-4/11 at Page 38 of the reply of writ petition and the matter is liable to be referred to the Caste Screening Committee. This submission is of no avail because, firstly, the challenge of the petitioner is confined to the fact that respondent No. 4 is shown to be of Meena caste which is not included in the S.T. category of M.P. in the list of Scheduled Tribes submitted by the respondent/State as contained in Annexure R-1/1. Contention of the petitioner is that caste Meena was earlier considered as Scheduled Tribe in the Sub Division Sironj of District Vidisha (Entry No. 32) in Annexure R-4/5 which stood omitted w.e.f. 8-1-2003 by virtue of Act No. 10 of 2003. Secondly, this Court observed on 17-3-07 that the matter has been pending before the State level Scrutiny Committee for quite a long time and respondents were given opportunity to produce the decision of State Level Scrutiny Committee before 29-3-07. It was made clear that in case, if, the decision of the State Level Screening Committee is not produced, this Court would not wait for the decision and matter would be finally decided on its merits. Despite such a specific direction no effort has been made by the respondents specially, the respondent Nos. 1 and 2. Moreover, in the light of controversy involved in the petition the matter may be decided on merits on the strength of the authentic documents on record and there is no need to refer the matter to the Caste Screening Committee as prayed for by the learned Counsel for the respondent No. 4. Similarly, reliance on Supreme Court's decision rendered in the case of A.S. Nagendra and Ors. v. State of Karnataka and Ors. (2005) 10 SCC 301, is also not attracted because, learned Counsel for the petitioner has categorically stated that she should be making submission on the basis of certificate produced by the respondent No. 4 herself and would be able to show that the respondent No. 4 does not belong to S.T. category in the State of M.P. Reliance has further been placed by the respondents on the decision of the Apex Court in the case of Kumari Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors. : AIR1995SC94 . In Madhuri Patil's case (supra) the procedure for the issuance of a social status certificates, their scrutiny and their approval has been laid down which is not attracted in the present case because of the specific submission of the learned Counsel for the petitioner Smt. Meena Chaphekar that her arguments would be confined on the basis of certificate dated 21-3-03. Moreso, she has placed reliance on the D.B. decision dated 22-2-2007 of this Court rendered in the case of Ramprakash Pahariya and Anr. v. State of M.P. and Ors. in W.P. No. 351/2002. Paragraph 5 of the same is highly relevant which is being reproduced:
We also find in Circular dated 18-1-02 issued by the Government of M.P., General Administrative Department in Annexure P-5 action against persons of Meena Caste appointed earlier on the basis of caste certificates issued in their favour has been stayed and in the reply filed by the respondent State, it is stated in Paragraph 5.3 that the State Government vide its order dated 1-4-1998 had clarified that officers belonging to Scheduled Castes and Tribes of All India Services whose services have been or will be allotted to Madhya Pradesh State and family members depending on them shall be deemed to be members of Scheduled Caste and Scheduled Tribe in Madhya Pradesh on the condition that their caste is included in the Schedule of Scheduled Caste/Tribe in or any part of Madhya Pradesh State and since Meena caste is a Scheduled Tribe within the Sironj Sub Division of Vidisha District, which is part of Madhya Pradesh, officers belonging to Meena caste are entitled to benefits of the Constitution (Scheduled Tribes) Order, 1950. Since we have quashed the direction in the circular dated 1-4-1998 of the State Government to the effect that officers belonging to Scheduled Castes and Tribes of All India Services whose services have been or will be allotted to Madhya Pradesh State and family members depending on them shall be deemed to be members of Scheduled Castes and Scheduled Tribe in Madhya Pradesh on the condition that their caste is included in the Schedule of Scheduled Caste/Tribe in or any part of Madhya Pradesh State, we also quash circular dated 18-1-2002 (Annexure P-5) giving benefits to the officers of Meena Caste of other State on the ground that Meena Caste is included as Scheduled Caste in Sironj Sub Division of Vidisha District in the State of M.P.
12. Accordingly, it has been contended by the learned Counsel for the petitioner that the respondent No. 4 who has been described in the caste certificate as of Meena caste, is not entitled to the benefit of the Constitution (Scheduled Tribes) Order, 1950.
13. Coming to the merits of the case, it may be seen that the respondent No. 4 has obtained admission in the P.G. (M.S. Gynaecology and Obstetrics) against S.T. Seat on the basis of caste certificate dated 21-3-03 issued by the SDO Gwalior. In the certificate, the caste of the respondent No. 4 is shown to be Meena which was earlier included in the list of S.T. for the purposes of Sub Division Sironj of District Vidisha, as revealed in Annexure R-4/5. This admittedly stood omitted w.e.f. 8-1-2003 by virtue of Act No. 10 of 2003, as revealed in Annexure R-1/1. Thus, on 21-3-03 when the caste certificate was issued in favour of respondent No. 4, she did not fall within the category of S.T. candidate. On perusal of the said certificate, it is found that the respondent No. 4 has been shown to be of 'Meena' Caste/Tribe Scheduled Caste and Tribes. She has not been shown to be of any specified Scheduled Tribe against any particular entry. On the contrary, the entry number of the list issued under the Scheduled Caste and Scheduled Tribes (Amendment Act, 1976) is not specified but is kept blank.
14. Shri Anand Pathak, learned Government Advocate for respondent Nos. 1 and 2 as well as Shri Amit Agrawal, Advocate for respondent No. 4 submitted that respondent No. 4 falls within the category of S.T. 'Bhil Mina' which appears at Entry No. 8 of Annexure R-1/1 meant for the State of M.P. This argument is totally devoid of substance because in the certificate dated 21-3-2003, the respondent No. 4 is not shown to be belonging to the Tribe 'Bhil Mina' but is shown to be of 'Meena' caste. Secondly, the Entry No. 8 is nowhere mentioned in the said caste certificate. On the contrary, the number of the entry is kept blank. Thirdly, in the earlier certificate dated 18-3-99 contained in Annexure R-4/11, the respondent No. 4 is not shown to be 'Bhil Mina' but has been shown to be of 'Meena' Tribe. There is no iota on record to establish that the respondent No. 4 ever made any effort to seek correction in the caste certificate to the effect that 'Bhil Mina' may be substituted in place of caste 'Mina'. There is no further iota on record that respondent No. 4 ever asserted herself to be of Scheduled Tribe 'Bhil Mina'. On the contrary she has placed reliance on the circular dated 1-4-98 (Annexure R-4/10 to contend that in case of involuntary migration from other States to Madhya Pradesh, members of the family shall be entitled to avail the benefits of reservation and obtain caste certificates. This circular has already been quashed by the Division Bench of this Court in the case of Ramprakash Pahariya (supra). The Division Bench of this Court has clearly observed in Paragraph 5 of the Order that circulars dated 1-4-98 as well as another dated 18-1-02 giving benefits of officers of 'Meena Caste' of other states in the State of M.P. are quashed. Thus, the contention of the respondents that respondent No. 4 is Scheduled Tribe candidate and falls in entry No. 8 of Annexure R-1/1 is not acceptable. Since the tribes of 'Bhil Mina' and 'Meena' were entered at item No. 8 and item No. 32 in a separate manner, obviously, they must be regarded as different tribes. Otherwise, there would have been no occasion/justification for providing item Nos. 8 and 32 for a common tribe. Respondent No. 4 who has been shown in the certificate dated 21-3-03 as belonging to the 'Meena caste' cannot be treated as candidate belonging to the Scheduled Tribe 'Bhil Mina'. 'Meena' caste having been omitted from the Constitution (Scheduled Tribes) Order, 1950 by virtue of Act 10/03, the respondent No. 4 belonging to it as per her own certificate dated 21-3-03 could not have been treated legally under entry No. 8 of Annexure R-1/1 contrary to her own caste certificate. Thus, the respondent No. 4 was not a Scheduled Tribes candidate after 8-1-2003 and was not entitled to the P.G. Seat in the Gynaecology and Obstetrics. It has not been disputed that the petitioner belongs to Scheduled Tribe. Thus, the petitioner was rightful claimant for admission against reserved Scheduled Tribe seat and she ought to have been considered for allotment of it.
15. It has been further contended that the respondent No. 4 has already received education in P.G. Classes for about one year and she may be permitted to continue in the light of the decision rendered in the case of Sandeep Subhash Parate v. State of Maharashtra and Ors. (2006) 7 SCC 501.
16. In the present case it may be seen that the result of Pre P.G. was declared in April, 2006. The counselling took place in mid of May, 2006 and the present petition was submitted on 5-6-2006 alongwith an application for stay. This Court vide order dated 28-6-06 passed a specific order after hearing the parties that the admission granted to the respondent No. 4 to the course of M.S. Gynaecology and Obstetrics shall be subject to the final decision of this petition. Respondent No. 4 despite absence of entitlement for admission against the reserved S.T. seat has been admitted on the P.G. Seat of Gynaecology and Obstetrics whereas the petitioner who was in the merit list has not been admitted on the said seat in spite of being S.T. candidate. She has been admitted on diploma seat. There is difference between P.G. Seat and Diploma seat specially in medical education. In case, if the respondent No. 4 is permitted to continue on the S.T. seat of P.G. despite non-entitlement, the petitioner would not be able to get the seat in spite of being qualified for the same. This would obviously cause loss of academic status and future prospects. The respondent No. 4 very much knew about dispute regarding her caste certificate and has still chosen to continue on the P.G. Seat meant for S.T. category. She cannot be permitted to take advantage of her own action that, too, to the detriment of the petitioner who happened to be an eligible candidate for the subject S.T. seat. This being so, the submission of learned Counsel for respondent No. 4 is not liable to be accepted.
17. In the result, petition is, hereby, allowed. Respondent No. 4 is not found to be entitled to admission to the reserved subject seat for S.T. category and, accordingly, allotment of seat of M.S. Gynaecology and Obstetrics to respondent No. 4 is hereby, cancelled. Respondent Nos. 1 and 2 are directed to consider the petitioner for admission on the S.T. seat of P.G. (M.S. Gynaecology and Obstetrics) and pass suitable orders in her favour in case of her entitlement. 18. No order as to costs.