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Manju Singh Vs. the Dean, B.J. Medical College and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 7207 of 1985
Judge
Reported inAIR1986Guj175; (1986)2GLR1147
ActsConstitution of India - Articles 16, 341(1) and 366(24); Constitution (Scheduled Castes) Order, 1950; Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956 - Sections 3(1)
AppellantManju Singh
RespondentThe Dean, B.J. Medical College and ors.
Appellant Advocate B.P. Tanna and; J.P. Bhatt, Advs.
Respondent Advocate G.D. Bhatt, Asstt. Government Pleader,; R.A. Mishra and;
Cases ReferredBhaiya Lal v. Harikishan Singh
Excerpt:
.....that petitioner did not belong to scheduled castes - article 341 (1) provides for designation of caste as scheduled caste for all purposes of constitution - article empowers president to specify caste by public notification - object of article is to provide additional protection to members of scheduled castes - petitioner belonged to scheduled castes - respondent directed to give admission in reserved category. - - 341, and it is urged that this phrase clearly indicates that the castes which are specified in the schedule are deemed to be scheduled castes in relation to the state for which they are so specified. the supreme court observed that in specifying castes, races or tribes, the president has been expressly authorised to limit the notification to parts of or of groups within..........of this claim, produced a certificate issued be tehsildar (who is equivalent to the mamlatdar of gujarat state) of kairana tehsil petitioners father belongs to shamli village, which is in kairana tehsil in mujaffarnagar district of the state of uttar pradesh and therefore petitioner produced the certificate issued by the tehsildar of kairana tehsil in support of her claim as stated above. petitioner also produced a certificate issued by the district backward class welfare officer, ahmedabad in support of her above claim. in this certificate also, it was stated that petitioner belongs to jatav caste which is recognised as scheduled caste in the state of uttar pradesh. the mamlatdar of rajkot city also issued a certificate stating to the effect that petitioner's father belongs to jatav.....
Judgment:
ORDER

1. Petitioner who has passed Higher Secondary School Certificate Examination conducted by the Central Board of Secondary Education. New Delhi in March 1985, has filed this petition, challenging the decision of the Selection Committee refusing, her admission to the First M. B. B. S. course on a seat reserved for scheduled castes on the ground that she does not belong to scheduled caste of Gujarat.

2. Petitioner is daughter of a Central Government servant who is at present Senior Divisional Mechanical Engineer of Western Railway stationed at Rajkot. Petitioner's father was transferred to Rajkot on Jan 15. 1982. On the transfer of her father to Rajkot, petitioner joined Kendriya Vidyalaya (Central School) at Rajkot. She passed Higher Secondary School Certificate Examination held by the Central Board of Secondary Education, New Delhi in March 1983 securing 65 per cent marks from the said school. She sought admission to M. B. B. S. course by making application to the Selection Commission constituted for selecting candidates for this course and the Dean of B. J. Medical College, who, I am told, is the Chairman of the Selection Committee. Petitioner claimed that she belonged to Jatav caste, which is one of the scheduled castes specified in relation to the State of Uttar Pradesh and in support of this claim, produced a certificate issued be Tehsildar (who is equivalent to the Mamlatdar of Gujarat State) of Kairana Tehsil Petitioners father belongs to Shamli village, which is in Kairana Tehsil in Mujaffarnagar District of the State of Uttar pradesh and therefore petitioner produced the certificate issued by the Tehsildar of Kairana Tehsil in support of her claim as stated above. Petitioner also produced a certificate issued by the District Backward Class Welfare Officer, Ahmedabad in support of her above claim. In this certificate also, it was stated that petitioner belongs to Jatav caste which is recognised as scheduled caste in the State of Uttar Pradesh. The Mamlatdar of Rajkot City also issued a certificate stating to the effect that petitioner's father belongs to Jatav caste which was at Sr. No. 24 in the list of scheduled castes in relation to Uttar Pradesh in the Schedule to the Constitution (Scheduled Castes) Order of 1950 as shown in the Manual of Election Law. The Assistant Director of Social Welfare Department of Gujarat State, by his letter dt .Dec, 18, 1985, addressed to the Secretary of' the Selection Committee, stated that as petitioner belongs to Jatav caste, which is recognised as scheduled caste in Uttar Pradesh, she was entitled to be admitted on the seat reserved for scheduled caste in Central School quota. However, the Selection Committee did not call the petitioner for interview when interviews were held for selecting candidates for admission to M. B. B. S. course. Petitioner and her father thereupon approached the authorities concerned and represented to them that petitioner was entitled to be admitted on one of the seats reserved for scheduled castes out of the seats allocated to the candidates passing Higher Secondary School Certificate Examination held by the Central Board of Secondary-Education of New Delhi from one of the institutions in Gujarat. Petitioner, however, was not considered for admission on this reserved seat.

3. It is not disputed that petitioner belongs to Jatav caste, which is recognised as scheduled caste in Uttar Pradesh. It is the stand of the respondents that petitioner does not belong to one of the scheduled castes recognised by the State of Gujarat and, therefore, she cannot be considered to be belonging to the scheduled caste for the purpose of admission to one of the Government Colleges in Gujarat. Consequently, she cannot be admitted on the seat reserved for scheduled castes. It would, therefore, appear that the only ground on which petitioner is denied admission to M.B. B. S. course, is that she cannot be considered to' be belonging to the scheduled. caste. it is not disputed that if the petitioner is considered to be belonging to scheduled caste, she would be entitled to be admitted on the seat reserved for scheduled castes out of the seats allocated to the candidates passing Higher Secondary School Certificate Examination held by the Central Board of Secondary Education, New Delhi from one 'of its institutions in Gujarat.

4. Rules known as Rules for Admission to first M.B.B.S course and First B. D. S course at the Government Medical Colleges and Dental College, Ahmedabad (hereinafter referred to as the 'Rules'), are framed by the State Government. R. I of the Rules prescribes qualifying examination for admission to First M. B. B. S. course and First B. D. S. course. Higher Secondary . School Certificate Examination (Science Stream) under 10+2 education pattern conducted by the Central Board of Secondary Education from any of the recognised institutions located in Gujarat State is prescribed to be one of the qualifying examinations. In other words, a candidate who has passed the Higher Secondary School Certificate Examination in Science Stream under 10+2 pattern of education conducted by the Central Board of Secondary Education, New Delhi is eligible for admission to First M. B. B. S. course and First B. D. S. course. Candidates passing qualifying examination of Central Board of Secondary Education, New Delhi from any institution located in Gujarat State, are to be admitted to Medical/Dental Colleges on pro rata basis as laid down in R. 1.6. There is no dispute about pro rata distribution of seats made by the Selection Committee. The details of the manner in which seats are distributed are placed before me. On the basis of formula laid down in R. 1.6, the seats available for candidates passing-qualifying examination conducted by Central Board of Secondary Education, New Delhi, from recognised institutions located in Gujarat comes to 17. Out of these total. 17 seats, one seat is reserved for scheduled castes, two for scheduled tribes and two for socially and educationally backward classes. Petitioner claims admission on this one seat reserved for scheduled castes. However, as stated above, she has been denied admission on the ground that she does not belong to scheduled castes recognised by the State of Gujarat. Respondent No. 4, who belongs to one of the scheduled castes, recognised by the State of Gujarat and who has passed the qualifying examination, held by the Central Board of Secondary Education, New Delhi, from one of the recognised institutions located in Gujarat, has been given admission to the M. B. B. S. course on the seat reserved for scheduled caste. If petitioner is held eligible for admission on the seat reserved for scheduled castes, it is not disputed that she will be entitled to admission in preference to respondent No. 4, as she has secured higher percentage of marks than respondent No. 4. In other words, if petitioner is held to be eligible, she ranks above respondent No. 4 on merits and she would be entitled to be admitted in preference to respondent No. 4. Therefore, the short question which arises for my consideration in this petition is whether petitioner could be considered to be belonging to scheduled caste for the purpose of admission to the First M. B. 13. S. course at Government Medical Colleges.

5. Art. 366(24) of the Constitution defines 'Scheduled Caste' to mean such castes, races, or tribes or parts of or groups within such castes, races of tribes as are deemed under Art. 341 to be Scheduled Caste for the purpose of the Constitution Art. 341 of the Constitution in authorises the President to issue a notified order in respect of each State specifying the castes, races or tribes, which are to be regarded as scheduled caste and this article reads as under:--

'341(l). 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 castes races or tribes or parts of or groups within castes, races or tribes which shall for the purpose of the Constitution be deemed to be Scheduled Castes 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 Castes specified in a notification issued under Clause (1) any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.'

It was under this Art. 341 of the Constitution that the President issued Constitution (Scheduled Castes) Order 1950 ('Order' for short) specifying castes, races or tribes, which are deemed to be scheduled castes in relation to different States and Union Territories. This Order was amended in the manner and to the extent specified in Schedule I to the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956. It is not disputed that Jatav caste to which petitioner belongs, is one of the scheduled castes specified in relation to the State of Uttar Pradesh in the Order and the said Act. In other words, it is not disputed that petitioner belongs to one of the scheduled castes recognised in the State of Uttar Pradesh. The contention of the respondents, however, is that petitioner could be considered to be belonging to the scheduled caste only in relation to the State of Uttar Pradesh, and she could not be considered to be belonging to scheduled caste so far as the State of Gujarat is concerned. In support of this contention, emphasis is laid on the words 'in relation to that State' used in Art. 341, and it is urged that this phrase clearly indicates that the castes which are specified in the Schedule are deemed to be scheduled castes in relation to the State for which they are so specified. In other words, according to the respondents the castes specified in relation to a State are to be considered to be scheduled castes within that State. It is urged that a member belonging to a scheduled caste in relation to A State would not be considered to be belonging to scheduled caste in B State. I am afraid, this interpretation sought to be placed on Art. 341(l) overlooks the definition of 'scheduled castes' contained in Art. 366(24) and the words 'which shall for the purposes of the Constitution be deemed to be Scheduled Caste'. Once caste is specified to be a scheduled caste under Art. 341(l), it is deemed to be scheduled caste for the purpose of the Constitution. It is true that Art. 341(l) empowers the President by a public notification to specify castes, races or tribes which shall for the purposes of the Constitution be deemed to be scheduled castes in relation to that State or Union Territory as the case may be; but that does not mean that scheduled castes so specified are deemed to be or considered to be scheduled castes for that State alone. Under the said provision, the entire caste, race or tribe or a part of or group within caste, race or tribe could be specified to be scheduled caste in relation to a State. A particular caste, which is spread all over the State, may not be considered to be scheduled caste, but part thereof which is in a particular area of a State may be considered to be scheduled caste and in that case, the President may specify part of that caste from that particular area as scheduled caste. If part of the caste alone is notified to be scheduled caste, the person belonging to that part alone would be considered to be belonging to scheduled caste. However, it does not mean that he would be regarded as belonging to scheduled caste only in that area in relation to which his caste is deemed to be scheduled caste. Part of the scheduled caste, which is specified is deemed to be scheduled caste for the purpose of the Constitution and therefore, part of the caste deemed to be scheduled caste in relation to an area of the State will be deemed to be scheduled caste for the entire State and other States of India.

6. The object of Art. 341(l), as observed by the Supreme Court in Bhaiya Lal v. Harikishan Singh, reported in AIR 1965 SC 1557, is to provide additional protection to the members of the scheduled castes having regard to the economic and educational backwardness from which they suffer. The Supreme Court observed that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or of groups within the castes, races or tribes and it must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe, but parts of or groups, within them should be specified. Similarly, the President can specify castes, races or tribes, or parts thereof in relation not only to the' entire State but in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In other words, having regard to the social and educational backwardness, it may be considered to be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State in the notification issued under Art. 341(l) of the Constitution. Therefore, particular caste may be specified to be scheduled caste only in relation to a particular area in a State, but once a person belongs to such scheduled caste in that area, he would be a scheduled caste member not only for that area of the State but also for the entire State and other States of India. The phrase 'in relation to that State' in Art. N(I) is used only to identify the castes, races or tribes or part of or. Groups within the castes, races or tribes of a particular State which are to be deemed to be or treated as scheduled castes for the purpose of the Constitution. A caste which is socially and educationally backward in relation to a State or an area in the State, would not cease to be so outside the State or area of the State. If a scheduled caste specified under Art. 341 is to be deemed to be a scheduled caste only within the State or area of the State in relation to which it is so specified, the very object of giving protection to such caste will be defeated. If the phrase 'in relation to' is to be understood in the narrow sense in which respondents want us to understand, it would mean that if a caste in a particular area of State is notified as scheduled caste under Art. 341(1), such caste would be scheduled caste only within that area of the State. As already pointed out above, scheduled caste is for the purpose of the Constitution and not for a State or a particular area of State.

7. The view which I am inclined to take, derives support from the meaning of the word 'relation' given in Oxford English Dictionary when used in or phrase 'in or with relation to'. Meaning of the word 'relation' given in the context of this phrase is: 'That feature or attribute of things which is involved in considering them in comparison or contrast with each other; the particular way in which one thing is thought of in connection~, with another; any connection, correspondence, or association, which can be conceived as naturally existing between things.' In Webster's New Twentieth Century Dictionary, the word 'relation' when used in the phrase 'in (or with) relation to' means 'concerning; regarding; about'. Even the Dictionary meanings clearly show that the phrase 'in relation to' would mean 'in connection with' or 'concerning' or 'regarding' or 'about'. Therefore, the phrase 'in relation to that State' used in Art. 341(1) would mean 'in connection with' or 'in regard to' that State. It would not mean 'confined to that State' as is sought to be urged on behalf of the respondents.

8. As already observed above, the phrase 'in relation to' is used only to identify the castes, races, or tribes or parts of or groups within castes, races or tribes, which are to be deemed to be scheduled castes for the purpose of Constitution. There may be a caste which is spread all over India, but such caste may not be socially and educationally backward in all parts of India. In one State or a part of the State, such caste may be socially and educationally backward and, therefore, it may be specified to be scheduled caste in relation to the State or part of the State. It is, therefore, that the President has been empowered to specify castes, races or tribes or part thereof in relation to a State or area of a State. It is in that context that phrase 'in relation to that State' has been used in Art. 341(1). Once caste or part of caste is specified to be scheduled caste, member belonging to such caste or part thereof which has been so specified, will be a member belonging to scheduled caste not only in the State or part of the State in relation to which his caste is specified, but for the purpose of the Constitution that is whole of India. In other words, a member belonging to scheduled caste would be scheduled caste member, wherever he is in India and not only when he is in the State or area of the State in relation to which his caste is specified to be scheduled caste. A caste is specified to be scheduled caste on account of its social and educational backwardness and such backwardness would not cease or disappear outside the State. Therefore, once a person belongs to scheduled caste, he would be scheduled caste person, not only in the State or area of the State in relation to which his caste is specified as scheduled caste, but all over India. In my opinion, therefore, petitioner who, admittedly belongs to scheduled caste recognised in Uttar Pradesh, is entitled to the benefits available to scheduled caste persons not only in Uttar Pradesh but other parts of India.

9. Respondents, however, strongly relied on the decision of the Orissa High Court in K. Appu Rao v. Director, P. & T AIR 1969 Orissa 220, in which the phrase 'in relation to that State' occurring after the words 'Scheduled Castes' in Art. 341(1), was interpreted to mean that scheduled castes specified in various parts of the Schedule to the Order, are recognised as scheduled castes only for the particular area included in those parts of the Schedule and not anywhere else. Therefore, it was held, any reference to scheduled caste must be intended to be relatable to scheduled caste in relation to particular area or the State as appearing in the Schedule to that Order. Same meaning was given by Orissa High Court to identical phrase occurring in Art. 342(l), which provides for scheduled tribes. Orissa High Court held that since the petitioner before it was a person belonging to Konda Kapu, which was a scheduled caste, recognised in Andhra Pradesh, but not in the State of Orissa, he could not claim benefit of being a member of scheduled caste for the purpose of public employment in Orissa. In reaching this conclusion' the Orissa High Court sought to derive support from the decision of the Supreme Court in Bhaiya Lal v. Harikishan Singh (AIR 1965 SC 1557) (supra).

10. With utmost respect, I do not agree with the view taken by Orissa High Court. As observed above, in my opinion, meaning given to the phrase 'in relation to that State' used in Art. 341(1) by Orissa High Court would defeat the very object of giving protection to scheduled castes. The decision of the Supreme Court in Bhaiya Lal, with respect, does not support the view taken by the Orissa High Court. This decision was rendered in the context of a claim made by a candidate in election that he belonged to scheduled, caste. Appellant Bhaiya Lal claimed that he belonged to Dohar caste and he was Chamar scheduled caste in Madhya Pradesh. According to the rival candidate respondent Harikishan Singh, the appellant was Dohar but was not a Chamar. The Returning Officer, however, accepted the declaration made by the appellant and he was ultimately declared elected. His election was challenged by the respondent. The Election Tribunal allowed the petition of the respondent and declared the appellant s election invalid. The Madhya Pradesh High Court having confirmed the findings of the Election Tribunal, the appellant went in appeal before the Supreme Court. It was not disputed that the appellant belonged to Dohar caste. His contention, however, was that Dohar was a sub-caste of Chamar and since Chamar was one of the castes specified in the public notification issued by the President, under Art. 341(1), he must be' considered to be belonging to scheduled caste. . The Supreme Court observed that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Art. 341(1), one has to look to the public notification issued by the President in that behalf. Notification issued by the President refers to Chamar, Jatav or Mochi, and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal could hold is whether or not the appellant was a Chamar, Jatav or Mochi. The plea that though the appellant was not a Chamar as such, he could claim the status by reason of the fact that he belonged to Dohar caste which was a sub-caste of Chamar caste, could not be accepted. It was observed that the inquiry of that kind would not be permissible having regard to the provisions contained in Art. 341(1). The Supreme Court rejected the argument that President cannot divide the State into different districts or sub areas and specify the castes, races or tribes for the purpose of Art. 341(1). 1 need not repeat other observations of the Supreme Court adverted to hereinbefore. There is nothing in the judgment of the Supreme Court to suggest that scheduled castes which are notified under Art. 342(l) are to be considered to be scheduled castes only in the State or area in relation to which they are so specified.

11. The meaning which is sought to be placed on the phrase 'in relation to the State' by the respondents is likely to result in anomalous position, especially in matter of public employment. How would the policy of reservation be implemented in Central Government Services, such as All India Services, Would a person belonging to scheduled caste of a State not be eligible to apply for one of the posts of Member of Income-tax Appellate Tribunal reserved for scheduled castes? The answer obviously is that he would be. Public employment under the Central Government is not confined to one State and there is no separate list of castes in the Schedule to the Order and the aforesaid Act applicable or operative for public employment under the Central Government. Again, if the respondents are right in their contention, in case of caste or part thereof, specified in relation to a part or area of a State, benefit of reservation would be available only in that part or area of the State and a person belonging to such scheduled caste will not be able to seek employment and other benefit as member of scheduled caste not only in other States but even in other parts of his own State. This demonstrates the absurdity of the argument advanced on behalf of the respondents. It is also pertinent to remember that in the instant case, petitioner has sought admission to one of the seats reserved for scheduled castes out of the seats allocated to the students passing Higher Secondary School Certificate Examination held by the Central Board of Secondary Education, New Delhi from one of the institutions in Gujarat. Central Schools located in Gujarat are affiliated to Central Board of Secondary Education, New Delhi and petitioner had appeared for Higher Secondary School Certificate Examination from one of such schools. It is well known that these Central Schools or Kendriya Vidyalayas are established specially to cater to the needs of the Central Government servants who are transferable all over India. Therefore, the candidates appearing from such schools located in Gujarat would not necessarily belong to the State of Gujarat. The candidates passing Higher Secondary School Certificate Examination from such schools though not belonging to Gujarat State would be entitled to compete for seats allocated to such candidates as stated above, irrespective of the fact whether they belong to Gujarat State or not. However, the respondents contend that though the candidates belonging to other States can compete for the seats allocated for them reservation for scheduled castes or tribes will be confined to the candidates belonging to the State of Gujarat since only those candidates who belong to scheduled castes recognised by the State of Gujarat, will be entitled to seek. Admission on such reserved seats. On the face of it, this contention is unsustainable. The fact that seats are reserved in the quota allocated to the candidates passing Higher Secondary School Certificate Examination held by the Central Board of Secondary Education, New Delhi, from one of the institutions in Gujarat, itself, indicates that person belonging to any of the scheduled castes, specified under Art. 341(1) is entitled to seek admission on such reserved seats, otherwise, it would be meaningless to make reservation in the quota allocated to the aforesaid candidates.

12. In the light of what is discussed above, it must be held that petitioner must be treated as belonging to scheduled caste for the purpose of considering her for admission to the First M.B.B.S. course in Government colleges on the seat reserved for scheduled castes out of the seats allocated to the candidates who have passed the qualifying examination of Central Secondary Education Board, New Delhi from recognized institutions in Gujarat State.

13. Before parting with the matter, it may be mentioned that respondents had also relied on R. 1 of the Rules in support of their submission that unless petitioner was a member of scheduled caste, recognised in the State of Gujarat, she was not entitled to be treated as belonging to scheduled caste. I fail to see how R. 1 can be of any assistance to respondents. R. 1 as stated above only prescribes qualifying examinations. It is not disputed that petitioner has passed the qualifying examination and that she is, therefore, eligible for admission to first M.B.B.S. course under R. 1. The only question is whether she is entitled to be treated as belonging to scheduled caste for the purpose of admission to such course. R. 1 does not deal with scheduled castes or admission on the seats reserved for scheduled castes. There is no other rule which provides that only the members belonging to scheduled castes recognised in relation to the State of Gujarat are to be treated as members belonging to the scheduled castes. Since in my view, petitioner belongs to scheduled caste, she was entitled to be considered for admission on the seat reserved for scheduled castes. It is not disputed that if petitioner is held to be belonging to scheduled caste, she would be entitled to admission to first M.B.B.S. course. This petition must, therefore, succeed.

14. In the result, this petition is allowed. Respondents Nos. 1to 3 are directed to give admission to the petitioner to the First M.B.B.S. course on the seat reserved for scheduled caste candidates out of the seats allocated to the candidates passing the qualifying examination of the Central Secondary Education Board, New Delhi from recognised institutions located in Gujarat. As a result of the admission given to the petitioner, respondent No. 4 will lose her admission to the First M.B.B.S. course. Respondent No. 4 was not any way responsible for the decision taken by the authorities concerned and she would obviously be disappointed as a result of success of this petition. There is no doubt that respondent No. 4 deserves all sympathies. 1, therefore, recommend to respondents Nos.1 to 3 to consider respondent No. 4's case, sympathetically and to consider the question whether respondent No. 4 could be accommodated by creating an additional seat The authorities concerned may, if necessary, approach the Medical Council for according approval for additional seat.

15. Rule made absolute with no order as to costs. Respondent No. 4's request to stay operation of this order for one week is rejected.

16. Writ to be sent down forthwith.

17. Petition allowed.


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