J. Chelameswar, C.J.
1. This matter is placed before the Full Bench pursuant to the order of reference of the Division Bench dated March 20, 2009.
2. The basic facts of the case are:
3. All the petitioners herein (10 in number) are employees of the North Eastern Electric Power Corporation Limited (hereinafter called 'NEEPCO Ltd.'). They are working at different places in the State of Arunachal Pradesh.
4. It is undisputed assertion of the petitioners that all of them originally belonged to the State of Assam and in the State of Assam, each of them was recognized as a person belonging to some scheduled tribe or the other specified under Article 342 of the Constitution of India. The petitioners also assert that they were employed by the respondent - NEEPCO against the vacancies reserved for scheduled tribes.
5. The petitioners further assert that from the date of their employment, they were exempted from payment of income-tax in view of Section 10 Sub-section (26) of the Income-tax Act, 1961, till the assessment year 2005-06. However, subsequent to that, i.e., with effect from the assessment year 2005-06 onwards, the employer had been deducting income-tax at source without any prior notice to the petitioners. Hence, the present writ petition with the prayers as follows:
(i) To direct the respondents to give exemption to the petitioners from paying income-tax under Section 10(26) of the Income-tax Act, 1961.
(ii) To direct the respondents to refund the income-tax to the petitioners already deducted at source in the previous assessment years of the petitioners concerned.
6. The above narrated basic facts are not disputed by the respondents.
7. Section 10 of the Income-tax Act stipulates that in computing the total income of any person for any year, the income falling under various categories specified under the various Sub-sections of the said Section shall be excluded. Relevant to the context is Sub-section (26) which reads as follows:
10. In computing the total income of a previous year of any person, any income falling within any of the following Clauses shall not be included-...
(26) in the case of a member of a scheduled tribe as defined in Clause (25) of Article 366 of the Constitution, residing in any area specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the (State of Arunachal Pradesh, Manipur, Mizoram, Nagaland and Tripura) or in the areas covered by Notification No. TAD/R/35/50/109, dated the February 23, 1951, issued by the Governor of Assam under the proviso to subparagraph (3) of the said paragraph 20 (as it stood immediately before the commencement of the North-Eastem Areas (Reorganisation) Act, 1971 (81 of 1971)) (or in the Ladakh region of the State of Jammu and Kashmir), any income which accrues or arises to him,-
(a) from any source in the areas (or States aforesaid), or.
(b) by way of dividend or interest on securities;
8. A detailed analysis of Sub-section (26) is required to be made later in the judgment, but we may indicate for the present that Sub-section (26) stipulates that the income of a member of the scheduled tribe, accruing or arising from whatever source (in the areas or States referred to in the said sub-section) or income received by such scheduled tribe by way of dividend or interest on securities, shall not be included in his total income for any previous year.
9. We may mention here that Sub-section (26) as originally enacted in the year 1961 read slightly differently. One salient feature of the sub-section, as it existed earlier, was that the exemption contemplated therein was available to the members of the scheduled tribes, who are not in the service of the Government, In other words, a member of the scheduled tribe, who otherwise satisfied all other terms of Sub-section (26) of Section 10 of the Income-tax Act, if he happened to be in the service of the Government, was not entitled to claim the benefit of the said section. The said Section was challenged in a case reported in S.K. Dutta v. Lawrence Singh Ingty : [1968] 68 ITR 272 (SC). The Supreme Court held such a classification excluding the Government servants from the scheme of Section 10 Sub-section (26) is violative of Article 14 and invalid. Consequently, Parliament amended the Income-tax Act (Act 42 of 1970) to bring the law in tune with the abovementioned Supreme Court judgment.
10. For deciding the tenability of the claim of the petitioners, an analysis of Section 10 Sub-section (26) is required. In our view, Section 10 Sub-section (26) stipulates that in computing the total income of an assessee, who is a member of a scheduled tribe as defined in Clause (25)1 of Article 366 of the Constitution, (1) any income, which accrues or arises to him from any source in the areas or States mentioned in Sub-section (26), should be excluded, and also (2) income, arising by way of a dividend or interest on security, is also required to be excluded irrespective of the territory from which such accrual has taken place. However, there are certain other conditions, specified under Sub-section (26) which make the benefit provided under Sub-section (26) available only to the members of the scheduled tribes 'residing in any areas' specified in the said section. In other words, the members of the scheduled tribes residing in other parts of the country, other than the one specified under Section 10 Sub-section (26), are not entitled to the benefit of Section 10 Sub-section (26).
11. Now, the first question is what are those areas specified in Section 10 Sub-section (26). They are (1) areas specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution, (2) the States of Arunachal Pradesh, Manipur, Mizoram, Nagaland and Tripura, (3) areas covered by Notification No. TAD/R/35/50/109, dated the February 23, 1951, issued by the Governor of Assam, and (4) the Ladakh region of the State of Jammu and Kashmir. The areas covered under category (1) mentioned above are areas falling within the States of Assam and Meghalaya. The Table appended to paragraph 20 of the Sixth Schedule to the Constitution, in so far as it is relevant for the present purpose, reads as follows:
Table
Part I
1. The North Cachar Hills District.
2. The Karbi Anglong District.
3. The Bodoland Territorial Areas District
Part II
1. Khasi Hills District.
2. Jaintia Hills District.
3. The Garo Hills District.
12. Coming to the third of the categories mentioned above are the areas covered by a notification issued by the then Governor of the State of Assam. It may be worthwhile to mention here that by the date of the said notification, i.e., of 1951, the State of Assam included territories far larger than the territories comprised within the boundaries of the State of Assam today. Some of those territories were later carved out and separate States were created which is a historical fact. The abovementioned notification came to be issued in exercise of the power conferred by the proviso to subparagraph (3) of paragraph 20 of the Sixth Schedule. It may be mentioned that paragraph 20 of the Sixth Schedule to the Constitution itself stood amended by an Act of Parliament known as the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971). We need not examine the purpose of the said notification, but from the tenor of the notification, it appears that the Governor of the then State of Assam was authorized to specify some areas, which are otherwise declared to form part of the tribal areas under paragraph 20 of the Sixth Schedule as it then existed. On such specification, those areas cease to form part of the tribal areas for the purpose of the Sixth Schedule. In exercise of such power, the notification was issued specifying certain areas of the then State of Assam. However, for the purpose of conferring the benefits under Section 10 Sub-section (26), Parliament thought it fit that notwithstanding the scheme of paragraph 20 of the Sixth Schedule to the Constitution and the authority of the Governor to exclude certain areas and the consequential decision of the Governor to notify by the abovementioned notification, those areas are also required to be treated on par with other parts of the North Eastern areas of the country.
13. Eventually, the question involved in the present case turns upon the words 'residing in any area specified' occurring in Section 10 Sub-section (26).
14. To determine the true meaning of the expression the following questions are required to be examined :
1. Does it deal with the residence of an individual member of a scheduled tribe specified 'with respect to' any State or Union territory; or
2. Does it deal with the residence of the entire tribe specified in relation to certain areas specified in Section 10(26) of the Income-tax Act. In other words, is the expression synonymous with the expression 'with respect to' occurring under Article 342, for example, a person belonging to a scheduled tribe specified by the President 'with respect to' the State of Andhra Pradesh or Tamilnadu migrates to one of the areas specified in Section 10(26) and chooses to reside therein would be entitled to claim the benefit of Section 10(26).
15. Under the scheme of the Constitution of India, scheduled tribes are defined to be such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be scheduled tribes for the purposes of the Constitution (article 366 Clause (25)). Under Article 342, the President is authorized to specify the tribes or tribal communities or parts of or groups within the tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be scheduled tribes in relation to that State or Union Territory, as the case may be. Such a specification is required to be done by public notification and be done after consultation with the Governor of the State or Union Territory, as the case may be, with reference to which the specification is sought to be made.
342. Scheduled tribes.- (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 purposes 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.
16. It is well settled that the specification of scheduled tribes is with reference to a particular State or Union Territory, i.e., a community or a tribe is specified to be a scheduled tribe only with reference to a particular locality/State/Union Territory. Such a community/tribe, even if it exists in some other parts of the country, if it is not specified by the President to be a scheduled tribe with reference to such other part of the country, the members of such tribe, inhabiting in such other part of the country, do not get the recognition of belonging to a scheduled tribe. Similarly, members belonging to a tribe recognized to be a scheduled tribe with reference to a particular State, when they migrate to another State, are not entitled as a matter of right for recognition as members of a scheduled tribe in the State of their immigration and claim the benefits offered by such State to the scheduled tribes notified in relation to that State. See Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College : [1990] 3 SCC 130 and Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India : [1994] 5 SCC 244.
17. Every member of a scheduled caste or scheduled tribe need not always stay at the place of his origin, where the scheduled caste or scheduled tribe, as the case may be, is recognised to be a scheduled caste or scheduled tribe under the provisions of the Constitution. The complexity of the modern world creates innumerable reasons for migration, the most primary reason being the compulsions of economic necessity. The question then is whether members of a scheduled caste or scheduled tribe, when they move out of the place of their origin and settle down in a new place could still continue to be treated as member of the scheduled caste or scheduled tribe, as the case may be.
18. The answer to the above mentioned question is not very simple. In fact, the Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College : [1990] 3 SCC 130, recognised the possibility of such migration. At paragraph 20 of the said judgment it is held as follows (page 146 of [1990] 3 SCC 146):
Having regard, however, to the purpose and the scheme of the Constitution which would be just and fair to the scheduled castes and scheduled tribes, not only of one State of origin but other states also where the scheduled castes or tribes migrate in consonance with the rights of other castes or community, rights should be harmoniously balanced. Reservations should and must be adopted to advance the prospects of weaker Sections of society, but while doing so care should be taken not to exclude the legitimate expectations of the other segments of the community.
Further, at paragraph 23 the Supreme Court held as follows (page 147):
Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those scheduled caste and scheduled tribe students who get the protection of being classed as scheduled caste or scheduled tribe in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the Legislatures or Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State Legislatures or Parliament may appropriately take into consideration.
19. However, in S. Pushpa v. Sivachanmugavelu : [2005] 3 SCC 1 the Supreme Court, for the first time recognised the distinction between recognition of a person to be a person belonging to a scheduled caste/scheduled tribe and the right to claim the benefits available by virtue of reservation in favour of scheduled castes or scheduled tribes. The Supreme Court also held that in relation to a particular State does not necessarily mean that when such a person migrates to another State from the State of his origin, he would cease to be a member of a scheduled caste or scheduled tribe altogether and becomes a member of a forward caste. At paragraph 20 the Supreme Court held as follows (page 14):
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.
20. The Supreme Court also recognised that though there is a constitutional limitation on the part of the State Legislature to amend or vary the list of scheduled castes or scheduled tribes prepared by the President under Articles 341 and 342, there is no limitation upon the authority of the State to confer the benefit of a special treatment either under Article 15(4) or 16(4) in favour of persons, who belong to either a scheduled caste or scheduled tribe as recognised by the President of India, in relation to some other States of the country. At paragraph 21, the Supreme Court held as follows (page 14):
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.
21. A Division Bench of this court in Mahendra Kamprai v. State of Assam [2008] (4) GLT 863, on an elaborate consideration of the issue in the light of the various pronouncements of the Supreme Court held that the authority of the State to extend special treatment contemplated under Article 15(4) or 16(4), as the case may be, in favour of persons belonging either to scheduled caste and scheduled tribe, as the case may be, in relation to some State of the Union of India but migrating to another State, came to the conclusion that nothing in the Constitution prevents the State from extending such special treatment.
22. In the above mentioned background of the constitutional scheme, the true meaning and amplitude of the exemption under Section 10(26) of the Income-tax Act is required to be considered. Section 10(26) seeks to exempt certain categories of income from being included in the total income of an assessee if the assessee happens to be a member of a scheduled tribe in relation to the North Eastern States of the country or the State of Jammu and Kashmir. With reference to each one of the States mentioned above, a separate list of scheduled tribes is published by the President under the authority of Article 342 of the Constitution of India.
23. The amplitude and scope of Section 10(26) fell for the consideration of this court. In NEEPCO Tribal Employees' Welfare Association v. Union of India : [2005] (4) GLT 463 : [2007] 290 ITR 481 (Gauhati), the learned judge on an elaborate consideration of the subject came to the following conclusion (page 497):
Having regard to the underlying legislative intendment in incorporating the exemption provision in the form of Section 10(26) of the Act and the interpretation which Section 10(26) of the Act has received in the hands of the apex court as well as of this court in the earlier decisions as well as the judicially evolved principles bearing on the relevant aspect of statutory interpretation, I am of the considered view that a person to be qualified for the exemption contemplated in the above provision of the Act has to be essentially a member of a scheduled tribe notified under the scheduled tribe Order to be so for the area(s), must be a permanent resident thereof and his income has to accrue from any source located therein. It is only if the above three conditions co-exist that the benefit envisaged under the above provision of the Act would be available. The interpretation provided to Section 10(26) of the Act by departmental and other authorities to the contrary as is sought to be relied upon on behalf of the petitioners, in view of the judicial determination made in N. Takin Roy Rymbai : [1976] 103 ITR 82 (SC), Dr. Curzon G. Momin : [1973] 92 ITR 425 (Gauhati) as well as above is inconsequential and is of no assistance to the petitioners. The petitioners, therefore, cannot be adjudged to be eligible for the exemption under Section 10(26) of the Act.
24. Another Division Bench of this court had an occasion to consider the scope of Section 10(26), in a case, reported in Smt. Dipti Doley Basumatary v. Union of India : [2007] 290 ITR 498 (Gauhati) : [2007] (3) GLT 348, and held as follows (page 503 of ITR):
All the writ petitioners are transferred from different areas mentioned in the Table to paragraph 20. Therefore, their residence in the State of Meghalaya and in Bodoland cannot be construed to be 'fleeting'. Question would have been altogether different had their stay been casual, passing or purely temporary. The word 'residing7 occurring in Section 10(26) cannot be given restricted interpretation confining the benefit of exemption only to the local members of the scheduled tribes. We are unable to hold that the words 'residing7 connotes permanent residence relatable to the concept of 'domicile'. The benefit of exemption is given to the members of the scheduled tribe for economic advancement of the tribal areas vis-a-vis financial benefit to the individuals. Therefore, a very casual or passing presence of a person would be incompatible with the legislative intent. But so far the writ petitioners are concerned, they have been residing in the State of Meghalaya and in Bodoland areas in connection with their services. They cannot shift their residence at their sweet will. Therefore, their presence in the State of Meghalaya and in Bodoland cannot be said to be 'passing' so as to exclude them from the benefit of Section 10(26).
From the above discussion, it can be concluded that a member of a scheduled tribe notified in any tribal areas as mentioned in the Table to paragraph 20 of the Sixth Schedule will be entitled to the benefit of exemption under Section 10(26) of the Income-tax Act provided- (a) he is residing in any other tribal area as described in the Table to paragraph 20; (b) the income which accrues to him arise from any source in such area; and (c) the tribe to which he belongs is also recognised as a scheduled tribe in the other tribal area where he is residing in connection with his avocation.
25. The learned single judge while deciding the case of NEEPCO Tribal Employees' Welfare Association v. Union of India : [2005] (4) GLT 463 : [2007] 290 ITR 481 (Gauhati), opined that to claim the benefit of Section 10(26) of the Income-tax Act, the person claiming such a benefit must be a member of a scheduled tribe notified under the scheduled tribes Order in relation to one of the areas specified under the said Section and also must be a permanent resident of that particular area with reference to which the tribe he belongs to is notified as a scheduled tribe and, thirdly, the income of which he claims exemption under Section 10(26) must have accrued from any source only from such area.
26. On the other hand, the Division Bench Smt. Dipti Doley Basumatary v. Union of India : [2007] 290 ITR 498 (Gauhati) : [2007] (3) GLT 348 took a different view. It held that a person, who claims the benefit of Section 10(26) of the Income-tax Act must be a member of a scheduled tribe in relation to any one of the areas specified under Section 10(26) of the Income-tax Act but, such a person need not reside in that area in relation to which his tribe is notified as a scheduled tribe, but it is enough if he is residing in any one of the other areas specified under Section 10(26).
27. The learned Counsel for the Department argued that in view of the two Constitution Bench judgments of the Supreme Court reported in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College : [1990] 3 SCC 130 and Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra v. Union of India : [1994] 5 SCC 244, it is well settled that a member of a scheduled tribe, migrating from the place of his origin, where the tribe to which he belongs is notified by the President to be a scheduled tribe in relation to that particular State within whose territorial limits such person's place of origin is located, does not carry the status of a scheduled tribe along with him. Consequently, the benefit under Section 10(26) of the Income-tax Act also cannot be claimed by a member of a scheduled tribe once he migrates from the State (State of origin) where the tribe to which he belongs to is notified as a scheduled tribe.
28. We are unable to accept the submission made by the learned Counsel for the Department for the following reasons:
As already noticed by us in S. Pushpa v. Sivachanmugavelu : [2005] 3 SCC 1, the Supreme Court has already held that it is not the question of a person carrying his status of membership of scheduled tribe from one State to another State, but the question is one whether the State to which the claimant migrates is willing to extend any special treatment to such a person. In fact, the Supreme Court in the said judgment also took note of the fact that in the context of All India Services, the practice of the Government of India is to provide for reservation/special treatment attracting the provisions of Article 16(4) of the Constitution in favour of scheduled castes and scheduled tribes without any reference to the State of their origin.
Apart from the practice followed by the Government of India, in our humble opinion, that is the only option possible under the Constitution as under the scheme of the Constitution no separate list of either scheduled castes or scheduled tribes in relation to the Union of India can be prepared. Therefore, if the Union of India desires to provide for any special treatment (like reservation) in favour of the scheduled castes or tribes in the services under the Union of India necessarily the Union of India has to provide such special treatment only in favour of those scheduled castes or tribes notified by the President in relation to the States.
29. In our view, it would be a strange logic to hear that a member of a scheduled tribe, belonging to a particular tribe in relation to a particular State, can be logically considered for special treatment by the Union of India in the matters of employment, but Parliament cannot provide for an exemption under the Income-tax Act in favour of such persons the moment such a person starts residing at a place other than the place of his origin. It is a different matter that Parliament decided not to give any such exemption. Once Parliament decides to give such an exemption, the question would be whether Parliament intended to deny the benefit of the exemption in the cases of immigrants.
30. The Division Bench of this court already noticed in Mahendra Kamprai v. State of Assam [2008] (4) GLT 863 (Gauhati) that Parliament, while making the Representation of the People Act, 1951, clearly recognised the rights of migrants from the place of their origin, whether they belong to scheduled castes or scheduled tribes, to contest any seat in the Lok Sabha or the Legislative Assembly of a State, as the case may be, subject of course to certain limitations with regard to the seats reserved in the autonomous district of the State of 'Assam'. At paragraphs 24, 25 and 26 of the said judgment it was held as follows:
24. Parliament made the Representation of the People Act, 1951. Section 7 read with the Second Schedule declare the total number of seats with respect to the Legislative Assemblies of each State. Section 3 of the said Act read with the First Schedule specifies the number of seats in respect of each of the States to be reserved in favour of either scheduled castes or scheduled tribes in the House of People (Lok Sabha). As to which particular seat in a particular State is to be reserved either in favour of scheduled castes or scheduled tribes vis-a-vis the Legislative Assembly of the State or Lok Sabha is a matter to be determined by the Delimitation Commission under the Appropriate Delimitation Act, the details of which may not be necessary for us. But such exercise is undertaken from time to time and seats are specified in each State which are reserved in favour of either a scheduled caste or a scheduled tribe. The Constitution does not prescribe that a seat reserved either in favour of a scheduled caste or a scheduled tribe, either in the House of People (Lok Sabha) or the Legislative Assembly of a State, shall not be filled up by electing a scheduled caste or a scheduled tribe candidate, as the case may be, unless such a candidate belongs to scheduled caste or scheduled tribe, as the case may be, in relation to that State. On the other hand, the Representation of the People Act, 1951, deals with this aspect of the matter. Under Section 4 of the said Act, with reference to filling up of a seat in the House of People, it is stipulated that a person shall not be qualified to be chosen to fill a seat in the House of People reserved for scheduled castes, in any State, unless such a person is a member of any of the scheduled castes, 'whether of that State or of any other State, and is an elector for any Parliamentary constituency'. A similar provision is made with reference to scheduled tribes in Section 4(b). However, an exception is created with reference to the seats reserved in the autonomous districts of Assam. Sub-section (c) of Section 4 deals with filling up of the reserved seats in the autonomous districts of Assam. Thus, it can be seen, in the context of election to a reserved seat in the House of People, that residence/registration as an elector in the constituency, which is reserved, is not essential. It is also not essential that a candidate should belong to scheduled caste or scheduled tribe recognised as such in the context of that particular State under the Presidential Order of 1950 nor is such a person required to be residing in the reserved constituency from which he seeks to contest the election.
25. Section 5 of the Representation of the People Act, 1951, provides for the filling up of the seats in the Legislative Assembly of a State. It is stipulated under Section 5 that for filling up of a seat in the Legislative Assembly reserved either for scheduled castes or scheduled tribes, the person must belong to either scheduled caste or scheduled tribe, as the case may be, recognised to be a scheduled caste or scheduled tribe, as the case may be, vis-a-vis that particular State, but such a person need not be an elector of that particular locality, which is specified in the Presidential order, while recognizing the scheduled castes and scheduled tribes of that particular State.
26. Coming to the question as to who is an elector within the meaning of the said expression occurring in Sections 4 and 5 of the Representation of the People Act, 1951, we notice that Section 2(e) of the Representation of the People Act, 1951, defines the said expression as follows:
'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1951.
Under Section 19 of the Representation of the People Act, 1951, a person is entitled to be registered as an elector in the electoral roll prepared for a constituency 'if he is ordinarily resident in a constituency.
Therefore, it follows that the Representation of the People Act permits persons to contest the election to fill up a seat reserved either in favour of a scheduled caste or a scheduled tribe without insisting upon the residence of such a person in the particular constituency which he seeks to represent. More particularly in the context of the Lok Sabha, a person, belonging to either a scheduled caste or scheduled tribe, is not denied the benefit of the status as a scheduled caste or scheduled tribe, as the case may be, by reason of his seeking to contest a reserved seat in a State other than the one with respect to which such a person is recognized as a person belonging to scheduled caste or scheduled tribe.
31. Therefore, the scope, purport and true meaning of Section 10(26), in our view, must be decided only with reference to the language of the said Section in the light of the well established principles of interpretation of the statutes uninhibited by any belief that the Constitution prohibits any benefit being given to a migrant member of a scheduled caste or scheduled tribe.
32. Examined thus, the crucial expression 'residing in any area specified' occurring under Section 10(26), in our view, cannot be given a narrow and restricted meaning to imply that the members of a scheduled tribe migrating from their place of origin, which happens to fall in one of the areas specified in the said sub-section, to another area although once again falling within the areas specified in the sub-section, would not get the benefit of the exemption under Section 10(26). If a literal meaning is to be given to the expression 'residing in any area specified', in our view, Section 10(26) is capable of producing a result that any member of a scheduled tribe irrespective of the fact whether such a scheduled tribe is a scheduled tribe, in relation to those territories specified in the said Sub-section or not, is entitled to the benefit of the said sub-section. It is not the case of either the petitioners or the Revenue that Parliament, while enacting Section 10(26) intended such result. Therefore, the expression 'residing in any area specified' must be interpreted in the context of the said sub-section. The context of the Sub-section is that it is a special provision with reference to the specified areas of the country, that is, the areas comprising North East and Jammu and Kashmir of the country, which received a special treatment under the scheme of the Constitution in the various aspects of the application of the Constitution. It may also be worthwhile remembering that even in the matter of reservation of seats either in the Lok Sabha or the various Legislative Assemblies, the scheduled tribes of the State of 'Assam' are treated exclusively under Article 330(3)1 and 332(1)2. Therefore, in our view, the expression 'residing in any area specified', occurring under Section 10(26) is used by Parliament synonymously with the expression 'in relation to any area specified' under the said sub-section. In our view, the expression 'residing in any area specified' is not meant to be restrictive of the benefit provided under the said Sub-section in the case of members of the scheduled tribes, who, otherwise, fall within the scope of the said section, but migrating to one of the places specified in the said Sub-section but only descriptive of the limited number of scheduled tribes, which are residents of the areas specified under Section 10(26) of the Income-tax Act.
33. It may also be kept in mind while interpreting the said Sub-section that the benefit contemplated therein is sought to be given to a specific class of assessees with reference to the income arising or accruing out of a specified area, i.e., areas specified in Section 10(26)(a) or certain sources specified in Section 10(26)(b). While Clause (a) of Section 10(26) restricts the benefit to the incomes arising or accruing out of various sources, such as, salaries, house properties, etc. (which are some of the heads of income) so long they arise or accrue within one of the territories/areas specified in the said sub-section, under Clause (b) of Section 10(26), such a restriction, regarding the territory (with reference to which the income arising out of dividend or interest on securities arise), is not applicable.
34. Yet another reason to reject the interpretation sought to be placed on the said Sub-section by the Revenue is the history of the sub-section. It is already noticed earlier, originally the provision sought to exclude the employees of the Government from the purview of the benefit conferred by the said subsection, which was found to be unconstitutional by the Supreme Court as creating an unreasonable classification among the scheduled tribes. The Supreme Court in S.K. Dutta, ITO v. Lawrence Singh Ingty : [1968] 68 ITR 272 held such a classification to be illegal. At paragraph 14 of the said judgment, the Supreme Court held as follows (page 278):
It was the contention of the learned Solicitor-General that exemption from income-tax was given to members of certain scheduled tribes due to their economic and social backwardness; it is not possible to consider a Government servant as socially and economically backward and, hence, the exemption was justly denied to him. According to the Solicitor-General, once a tribal becomes a government servant he is lifted out of his social environment and assimilated into the forward Sections of the society and, therefore, he needs no more any crutch to lean on. This argument appears to us to be wholly irrelevant. The exemption in question was not given to individuals either on the basis of their social status or economic resources. It was given to a class. Hence, individuals as individuals do not come into the picture. We fail to see in what manner the social status and economic resources of a Government servant can be different from that of another holding a similar position in a corporation or that of a successful medical practitioner, lawyer, architect, etc. To over-paint the picture of a Government servant as the embodiment of all power and prestige would sound ironical. Today his position in the society to put it at the highest is no higher than, that of others who in other walks of life have the same income. For the purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction, having regard to the purpose of the law.
35. Once it is held that such a classification of the Government servants from the scope of Section 10(26) is violative of Article 14 to say that a Government servant or the employees of the 'State' (within the meaning of Article 12) loses the benefit on the mere accident of his being posted out of his place of origin but within the areas specified under Section 10(26) and entitled to the benefit of the said Section if by an accident, he is posted in the same area of his origin. Such an interpretation, in our view, which is dependent upon pure accident and exigencies of the service, would lead to wholly arbitrary results and undesirable consequences.
36. We, therefore, find no substance in the submission made by the Revenue. We are of the opinion that the case reported in NEEPCO Tribal Employees' Welfare Association v. Union of India : [2005] (4) GLT 463 : [2007] 290 ITR 481 (Gauhati) is wrongly decided and we approve the decision of this court reported in Smt. Dipti Doley Basumatary v. Union of India : [2007] 290 ITR 498 : [2007] (3) GLT 348 to the extent it is consistent with the present judgment.
37. For all the above reasons, the writ petition is required to be allowed and the same is accordingly allowed, as prayed for, but in the circumstances without costs.
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1. 366.(25) 'Scheduled tribes' means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be scheduled tribes for the purposes of this Constitution.
1. 330.(3) Notwithstanding anything contained in Clause (2), the number of seats reserved in the House of the People for the scheduled tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the scheduled tribes in the said autonomous districts bears to the total population of the State.
2. 332.(1) Seats shall be reserved for the scheduled castes and scheduled tribes, except the scheduled tribes in the tribal areas of Assam, in Nagaland and in Meghalaya, in the Legislative Assembly of every State.