Kumari T. Punitha Vs. Commissioner for Entrance Examinations and anr. - Court Judgment

Excerpt:
constitution - scheduled caste - articles 226 and 341 of constitution of india and scheduled castes and scheduled tribes orders (amendment) act, 1976 s- whether appellant who is accepted as scheduled caste in one state can claim same benefit in another state on ground of similar nomenclature of her caste being accepted as scheduled caste in that state - criteria for inclusion of same caste in one state different from that of migrated state - appellant's candidature as schedule caste quota for admission not sustainable and rightly rejected. - - the same was challenged through an original petition praying for a direction to the first respondent commissioner to declare her result as well as to admit her to the course on the basis of the result so declared treating her as a candidate belonging to the scheduled caste community. 2. we heard the learned counsel appearing for the appellant as well as the learned government pleader. after detailed discussion on various case laws, the apex court at para 13 observed that, it, however, appears to us that the expression 'for the purposes of this constitution' in article 341 as well as in article 342 do imply that the scheduled caste and the scheduled tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. after all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of maharashtra as well as disadvantaged castes or tribes of andhra pradesh. union of india, (1994) 5 scc 244 :(1994 air scw 3305). the state of maharashtra denied the benefits and privileges available to scheduled castes and scheduled tribes specified in relation to that state to members of the scheduled caste and scheduled tribes belonging to other states, who have migrated to the state of maharashtra, on the basis of certain circulars and letters issued by the government of india as well as the consequential instructions issued by the state of maharashtra.j.m. james, j. 1. the petitioner, kumari t. punitha, d/o. s. thiyagarajan, puthukottai, tamilnadu, in o. p. no. 13172/ 2002 of this court, is the appellant. she belongs to hindu 'paraya' community, which is recognised as a scheduled caste, as per the scheduled caste and scheduled tribe orders (amendment) act, 1976, vide serial no. 56 of the schedule, in short 'the orders of 1976'. the father of the appellant is residing in kerala from 1982 onwards and is working in h. m. t. limited from 9-8-1992. while studying in 12th standard at kendriya vidyalaya, nad, aluva, she applied for the entrance examination for admission to the professional degree courses 2002, for engineering and medical /agricultural courses. the application was submitted in the form prescribed exclusively for admission to scheduled caste and scheduled tribe candidates. the caste of the appellant was certified in ext. p1 certificate by the tahsildar of puthukkottai. the 2nd respondent, tahsildar, kanayannur taluk, kochi-11, instead of furnishing a certificate in the appropriate place of the application form for admission to the entrance examination, issued a separate ext. p2 certificate stating that the appellant belongs to hindu paraya caste according to ext. p1 certificate. the application was consequently rejected by the first respondent, the commissioner of entrance examinations. thiruvananthapuram, and issued ext. p3 memo stating that no community certificate in the body of the application as stipulated in the prospectus 2002 was furnished. the same was challenged through an original petition praying for a direction to the first respondent commissioner to declare her result as well as to admit her to the course on the basis of the result so declared treating her as a candidate belonging to the scheduled caste community. the learned single judge as per the judgment dated 26-6-2002, held that ext. p2 certificate is based on a government order dated 12-2-1986. therefore, the petitioner cannot seek the benefit of the scheduled caste. however, the learned single judge observed that, even if caste is not mentioned in the application, one's entitlement based on general merit cannot be denied, and on that ground, quashed ext. p3 and directed the first respondent commissioner to declare the result of the entrance examination and to consider the appellant for admission to professional courses based on such ranking against general merit quota. in this writ appeal, the findings of the learned single judge that the appellant cannot seek the benefit of scheduled caste is challenged. 2. we heard the learned counsel appearing for the appellant as well as the learned government pleader. 3. the point that arise in this writ appeal for decision is whether the appellant, t. punitha, who is accepted as 'paraya' in tamilnadu, can claim the same benefit, if a caste having similar nomenclature is accepted as scheduled caste in kerala state. 4. the appellant applied for admission to the professional degree courses of 2002, as per the provisions contained in the prospectus issued by the first respondent. in the counter affidavit filed by the first respondent, it is averred that as per the prospectus of 2002, for admission to the professional degree courses, a scheduled caste or scheduled tribe candidate claiming quota under the caste /community reservation should furnish a certificate in the pro forma given in the application form itself, by the local tahsildar and the applications for the reserved seats of scheduled castes /scheduled tribes, which would not contain the community certificate, as stated above, will not be considered for claiming community reservation. because of the non-furnishing of the caste details in the prescribed portion of the pro forma of the admission application, the first respondent rejected the admission application of the appellant. the argument of the learned counsel for the first respondent is that the government of india, ministry of home affairs, have issued certain guidelines on 7-6-1985, which clarify the status of immigrants before 1950, that is before the promulgation of the presidential order of the castes with regard to each state and also the status in other states after 1950. hence, it is contended that the father of the appellant got settled only after 1950, and therefore, the appellant cannot be treated as a scheduled caste in the state of kerala, though she belongs to a scheduled caste in the state of tamilnadu. 5. the learned counsel for the appellant, on the other hand, contended that the right of a scheduled caste person continues to be so, when the same is certified by the competent authority, and therefore, the appellant is entitled to be treated as a scheduled caste in the state of kerala also. 6. a similar question came up for consideration of a larger bench of the apex court in marri chandra sekhara rao v. dean, seth g. s. medical college (1990)3 scc 130. the petitioner belongs to the gouda community also known as 'goudi', which is treated as a scheduled tribe in the constitution (scheduled tribes) order, 1950. the father of the petitioner possessed a certificate from the tahsildar, tenali in the state of andhra pradesh, dated 3-8-1977. accordingly, the father of the petitioner obtained employment in the fertilizer corporation of india, a public sector undertaking on october 17, 1977, in the scheduled tribe quota. he also worked in the rashtriya chemicals and fertilizers limited, from 1978 onwards, which is a government of india undertaking, under the quota reserved for scheduled tribes. the petitioner came to live in bombay, in the state of maharashtra, when he was aged about 9 years. after passing his 12th standard examination, he submitted his application for admission to mbbs course in three medical colleges run by the bombay municipal corporation. the petitioner was not admitted to the mbbs course in any of the colleges under the municipal corporation for the reason that the petitioner was not entitled to scheduled tribe status of his origin, though the community of the petitioner is specified as a scheduled tribe in the constitution (scheduled tribes) order, 1950. the apex court, after considering article 341 in respect of scheduled castes and article 342 in respect of scheduled tribes, raised a question as to whether the petitioner can claim the benefit of being a scheduled tribe in the state of maharashtra, though he had a scheduled tribe certificate from the state of andhra pradesh. after detailed discussion on various case laws, the apex court at para 13 observed that, '.............................it, however, appears to us that the expression 'for the purposes of this constitution' in article 341 as well as in article 342 do imply that the scheduled caste and the scheduled tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. constitutional right, e. g. it has been argued that right to migration or right to move from one part to another is a right given to all to scheduled castes or tribes and to non-scheduled castes or tribes. but when a scheduled caste or tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original state specified for that state or area or part thereof. if that right is not given in the migrated state it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession.'it is also further held that, '..........................the expression 'in relation to that state' would become nugatory if in all states the special privileges or the rights granted to scheduled castes or scheduled tribes are carried forward. it will also be inconsistent with the whole purpose of the scheme of reservation. in andhra pradesh, a scheduled caste or a scheduled tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. in maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. if a boy or a child goes to that atmosphere of maharashtra as a young boy or a child and goes in a completely different atmoshphere or maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of maharashtra belonging to any segment of that state who may still require that protection. after all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of maharashtra as well as disadvantaged castes or tribes of andhra pradesh. thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. treating the determination under articles 341 and 342 of the constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of article 341 read with article 15(4) of the constitution.' answering the questions after the above discussions, the apex court held that the petitioner was not entitled to be admitted in the medical college on the basis that he belonged to the scheduled tribe community in andhra pradesh. 7. yet another similar situation also came up for consideration of a larger bench of the apex court in 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 : (1994 air scw 3305). the state of maharashtra denied the benefits and privileges available to scheduled castes and scheduled tribes specified in relation to that state to members of the scheduled caste and scheduled tribes belonging to other states, who have migrated to the state of maharashtra, on the basis of certain circulars and letters issued by the government of india as well as the consequential instructions issued by the state of maharashtra. dismissing the plea of the petitioner, the apex court, after affirming the principle laid down in manl chandra sekhara rao v. dean, seth g. s. medical college, (1990 (3) scc 130), cited supra, held at para 16 that, '16................. considerations for specifying a particular caste or tribe or class for inclusion in the list of scheduled castes / scheduled tribes or backward class 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 could 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.' 8. the bar placed reliance on the decision reported in palghat jilla thandan samudhaya samrakashana samithi v. state of kerala, (1994) 1 ker lt 118 (sc), wherein the question whether the state government should continue to grant to members of the thandan community belonging to the erstwhile malabar district, including the present palghat district, of the benefits due to a caste included in the schedule of constitution (scheduled castes) order. one miss. o, k. lakshmikutty challenged the denial of her admission to the first year mbbs course in 1981-82 on the ground that she was not a thandan. she challenged it by filing an original petition before this court. it was allowed, while so, the state government, after the inclusion of thandan in the scheduled castes order by reason of the amendment act 1976, made enquiries which had revealed that a section of ezhavaa /thiyyas of the malabar area and certain taluks of trichur district, who were called thandans had nothing in common with the scheduled caste thandans. this court, therefore, directed the state government to conduct a public enquiry to determine whether there was any community called thandan distinct from ezhavas in palghat district, and in areas other than in the erstwhile chittur taluk and also in any other place in the erstwhile malabar district. the caste of miss. lakshmikutty, who by then got admission to mbbs, was also directed to be enquired into. on her passing mbbs, she filed another o.p. upon her denying admission to post graduate courses and the same was allowed subject to the result of the enquiries as stated above. the same was challenged before the apex court, and at para 21, the apex court, held that, '21. ......................it is not for the state government or for this court to enquire into the correctness of what is stated in the report that has been made thereon or to utilise the report to, in effect, modify the scheduled castes order. it is open to the state government, if it so deems proper, to forward the report to the appropriate authority to consider whether the scheduled castes order needs amendment by appropriate legislation. until the scheduled castes order is amended, it must be obeyed as it reads and the state government must treat thandans throughout kerala as members of the scheduled castes and issue community certificates accordingly.' the facts, as stated above, in palghat jilla thandan samudhaya samrakshana samithi v. state of kerala, (1994)1 ker lt 118 are compeletly different than the facts under discussion, and therefore they cannot be applied in the context of this case, although the principle that the state government shall not enquire about the correctness of the presidential orders has to be followed. 8a. kumari t. punitha claims her status as hindu paraya community, which is recognised as scheduled caste under the orders of 1976, on the basis of the certificate issued by puthukottai tahsildar. the said community certificate is applicable in tamilnadu. the specifications under which a particular caste or community could be included as scheduled caste or scheduled trtbe in a particular state, would be entirely different than that of the similar caste or community in migrated state. we respectfully agree with the principles of law laid down by the apex court in marri chandra sekhara rao v. dean, seth g. s. medical college, (1990) 3 scc 130 and action com mittee on issue of caste certificate to scheduled castes and scheduled tribes in the state of maharashtra v. union of india, (1994) 5 scc 244 : (1994 air scw 3305), cited supra. therefore, the contention of the learned counsel for the writ appellant that kumari t. punitha is to be accepted as a scheduled caste person of the state of kerala, is without any merit. we therefore, agree with the conclusion of the learned single judge that the appellant cannot seek the benefit of the scheduled caste. 9. the learned government pleader submitted that the application for admission by kumari t. punitha was made to the professional degree courses of 2002, in the form prescribed 'exclusively for admission to scheduled castes and scheduled tribe candidates.' it is, therefore, contended that quashing of ext. p3 of the first respondent and directing the first respondent commissioner, to declare the result of the entrance examination on her entitlement, based on general merit quota and she be given the ranking against the general merit quota, may be deleted. we should not have normally conceded to such an argument, had the application been submitted by the appellant in general quota. but the application, as stated above, was exclusively for scheduled castes and scheduled tribe candidates. therefore, the order of the learned single judge, directing the first respondent entrance examination commissioner to declare the result of the appellant on merit quota is unsustainable, and hence, the same is set aside. in view of the above discussions, we find that there is not merit in the writ appeal hence, the same is dismissed. no costs.