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Milind Nikhare Vs. the Malviya Regional Engineering College Society and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1301 of 1981
Judge
Reported inAIR1982Raj87; 1981()WLN424
ActsConstitution (Scheduled Tribes) Order, 1950 - Sections 2; Constitution of India - Article 342 and 342(1)
AppellantMilind Nikhare
RespondentThe Malviya Regional Engineering College Society and anr.
Appellant Advocate Sharma, Adv.
Respondent Advocate N.L. Jain, Adv.
DispositionPetition dismissed
Cases ReferredIn K. Appa Rao v. Director of Posts
Excerpt:
.....as such the petitioner even if taken as a member of 'halba' tribe which is recognised as scheduled tribe in maharashtra, cannot claim any right of admission against the reserved seat of scheduled tribe to be selected by the regional malviya engineering college, jaipur. there is no bar for the petitioner or a person like him to compete with the candidates in general category. he cannot claim of being a member of scheduled tribe in the state of rajasthan.;(b) words & phrases--words 'in relation to' in article 342 of constitution of india--meaning of.;the words 'in relation to' are significant which mean that a scheduled tribe is to be deemed for that state only for which a public notification is issued by the president. the president, in exercise of the powers conferred by clause (1)..........10+2 system and the petitioner passed the final year of this course. the petitioner belongs to the state of maharashtra and has been recognised as a scheduled tribe under the scheduled tribes order, 1950 issued by the government of india. the petitioner applied for admission in 4 years engineering degree course at the malviya regional engineering college, jaipur, which is one of the regional engineering colleges established in the country sponsored by the government of india. the petitioner was called for interview on 11-8-1981 and was selected. the petitioner was also asked to deposit admission fees which he did at once on the same day. according to the scheme of arrangements between various regional colleges of engineering established in the country, the petitioner was selected in.....
Judgment:
ORDER

N.M. Kasliwal, J.

1. A short but an important question of law is involved in this case.

2. The petitioner alleged in the writ petition that his father was transferred from Bhopal (M. P.) to Jaipur (Rajasthan) in the month of July, 1976 and since then he is working here. The father of the petitioner is an employee of the Khadi and Village Industries Commission and he has to move about in different parts of the country as and when transferred. The petitioner passed AllIndia Senior School Certificate Examination in Science in 1981 from the Central School, Jaipur. The Senior School Certificate is based on 10+2 system and the petitioner passed the final year of this course. The petitioner belongs to the State of Maharashtra and has been recognised as a scheduled tribe under the Scheduled Tribes Order, 1950 issued by the Government of India. The petitioner applied for admission in 4 years Engineering Degree Course at the Malviya Regional Engineering College, Jaipur, which is one of the Regional Engineering Colleges established in the country sponsored by the Government of India. The petitioner was called for interview on 11-8-1981 and was selected. The petitioner was also asked to deposit admission fees which he did at once on the same day. According to the scheme of arrangements between various regional colleges of engineering established in the country, the petitioner was selected in Electrical Engineering Degree Course at Allahabad against one seat of Scheduled Tribe candidate for students qualifying from schools or colleges from Rajasthan for 1981-82.

The allegation of the petitioner is that the respondents refused to give the petitioner the necessary clearance and admission card without any valid reason. The petitioner, however, learnt that the admission card was not given by the respondents on the ground that he did not belong to a scheduled tribe in the State of Rajasthan. In the aforesaid circumstances, the petitioner filed this writ petition seeking an appropriate writ, order or direction from this court to the respondents not to withhold admission of the petitioner in Electrical Engineering Course for which he has been selected. It has been further prayed that the respondents may be directed to give necessary clearance and admission card to the petitioner so that he may be able to join his classes at Allahabad.

3. In response to a show cause notice given to the respondents, a reply was filed. The stand taken by the respondents is that the petitioner belonged to a Scheduled Tribe recognised in the State of Maharashtra, but the said scheduled tribe is not recognised in Rajasthan. It has been admitted that the petitioner was called for interview on 11th Aug., 1981 and he deposited the fees. It is, however, not admitted that he was selected or that his admission was finally cleared. It was made clear to the petitioner that unless he satisfied the respondents that he belonged to a scheduled tribe of Rajasthan, his admission would not be cleared. It has further been averred that 'Halba' is a scheduled tribe recognised for the State of Maharashtra only and so far as Rajasthan is concerned 'Habla' is not a scheduled tribe at all.

4. Mr. Sharma, learned counsel for the petitioner pointed out that Malviya Regional Engineering College, Jaipur has issued an admission circular and instructions to the candidates for admission to 1st year B. E, Degree Course at Malviya Regional Engineering College, Jaipur and other 14 Regional Engineering Colleges for the Session 1981-82, which has been annexed with the writ petition as Annexure 4. According to Clause 5 of the aforesaid admission circular, which deals with eligibility of candidates, only those candidates who had passed the qualified examination as a regular student from schools/colleges located in the State of Rajasthan or have appeared at these examinations were eligible to apply. Learned counsel for the petitioner further pointed out that a meeting of Principals of Regional Engineering Colleges was held in the Conference room of Ministry of Education and Culture on 14-11-1980 at New Delhi to finalise the revised procedure for admission for the year 1981-82. Minutes of the said meeting have been filed as Annexure 9. At Item No. 1.3 it was decided that 'all the Regional Engineering Colleges agreed to join hands together to adopt the revised procedure of admission from 1981-82. Thus only one application will be submitted by the students for admission to one or any of the 15 Regional Engineering Colleges for the academic year 1981-82 and onward.'

In view of the aforesaid provisions, it is contended by the learned counsel for the petitioner that the petitioner could have applied only at one of the 15 Regional Colleges and the petitioner having passed his qualifying examination as a regular student of Central School, Jaipur the petitioner submitted his application at the Malviya Regional Engineering College, Jaipur. There is no restriction in the Admission Circular Annexure 4 that the petitioner should be a scheduled tribe candidate of Rajasthan only, as such, he was entitled to be given admission against the reserved seat of scheduled tribe. It was further contended that the aforesaid admission circular only mentioned that a candidate should be a person belonging to scheduled tribe and there was be distinction like a scheduledtribe of Rajasthan or of. Maharashtra. According to the learned counsel for the petitioner, the petitioner fulfilled all the qualifications of a scheduled tribe candidate and having passed the qualifying, examination from the Central School, Jaipur situated in Rajasthan, was entitled to be selected against one reserved seat at Allahabad for students qualifying from schools or Colleges from Rajasthan for 1981-82.

5. Mr. Jain, learned counsel for therespondents on the other hand invited attention to Article 342 of the Constitution of India, which reads as under:--

'342 (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).'

Mr. Jain contended that according to this provision the tribes or tribal communities shall be deemed to be scheduled tribes in relation to that State or Union territory as the case may be. In exercise of the powers conferred by Clause (1) of Article 342 of the Constitution of India, the President issued the Constitution (Scheduled Tribes) Order, 1950. Section 2 of the aforesaid order reads as under:--

'The tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XVI of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule.'

Parts (I) to (XVI) of the Schedule to this Order name the scheduled tribes in different States. Part IX of the Schedule consists of Maharashtra, in which at item No. 19 'Halba', 'Halbi' have been mentioned as scheduled tribe. Part XIII deals with Rajasthan, in which Halba or Halbi has not been mentioned as a scheduled tribe. Mr. Jain, learned counsel, thus contended that Halba or Halbi is a scheduled tribe in relation to the State of Maharashtra only and cannot be considered a scheduled . tribe in Rajasthan. It is also contended that the petitioner is not a scheduled tribe inthe place of his residence. It is also argued that the petitioner has not even alleged that he was born in Maharashtra and has also not given any period when he or his father resided in Maharashtra and as such if the ancestors of the petitioner might have lived sometime in Maharashtra, the petitioner cannot be taken to be of a scheduled tribe even in Maharashtra. According to Mr. Jain, the residence of the petitioner in Maharashtra was necessary to claim any right of scheduled tribe being a 'Halba', and even in that case, he could be recognised as a member of scheduled tribe in the State of Maharashtra only. According to the allegations made in the writ petition, the only facts disclosed by the petitioner are that his father was posted at Bhopal (M. P.) and from there he was transferred to Jaipur in 1976. This does not go to show that the petitioner ever resided in Maharashtra or got any education there and as such he cannot be considered at all a member of scheduled tribe. Mr. Jain placed reliance on the following authorities in support of his aforesaid contentions : K. Appa Rao v. Directors of Posts & Telegraphs, Orissa, AIR 1969 Orissa 220, V.B. Singh v. State of Punjab, ILR (1976) 1 Punj & Har 769, Wasudeo Laxman Nandanwar v. Union of India, 1974 Lab IC 141 (Bom) and Parasram v. Shivchand, AIR 1969 SC 597.

6. Mr. Sharma, learned counsel for the petitioner, in reply, contended that the petitioner has filed Annexure 1 as a certificate from the court of Naib Tahsildar and Executive Magistrate, Gadchiroli at Desaiganj certifying that the petitioner resident of village Armori, Tehsil Gadchiroli, Chanda district in the Maharashtra State belongs to the 'Halba' community which was recognised as a scheduled tribe under the Scheduled Castes, Scheduled Tribes Lists notified in Orders, 1956. Similarly, the petitioner has also filed Annexure 2 a certificate from the Munsiff & Judicial Magistrate, Jaipur City (West) Jaipur certifying that the petitioner belonged to 'Halba' (scheduled tribe) and has been notified as scheduled tribe in Maharashtra.

It is thus, contended that the above two certificates were sufficient to prove that the petitioner belonged to a scheduled tribe and the College authorities had not challenged the genuineness of these certificates. Mr. Sharma thus contended that in view of these two certificates, the petitioner did not find it necessary to giveany particulars or details of his residence in Maharashtra. It was also argued that the authorities cited by Mr. Jain were not applicable to the facts and circumstances of this case as the scheme of seeking admission in a Regional Engineering College was entirely different. In this regard, it was further submitted that a candidate for seeking admission in Regional Engineering Colleges could have applied only at one of the Regional Engineering Colleges and that also in the State from where he passed the qualifying examination. The father of the petitioner was employed in Khadi Village Industries Commission, which was an All India Service and the petitioner had to move along at various places in the country wherever his father was transferred. In this sort of situation, it is contended that if the father of the petitioner has been transferred in the State of Rajasthan and the petitioner had to pass his qualifying examination at Jaipur, he should not be deprived of being treated as a member of Scheduled Tribe and get a seat against reserved quota.

7. Mr. Jain, learned counsel for the respondents on the other hand, contended that the view taken by the College authorities is both reasonable and in accordance with law. The seat at Allahabad for which the petitioner is making a claim is reserved for a scheduled tribe of Rajasthan. The question of merit against the reserved seat is considered between the members of the scheduled tribes only. A member of scheduled tribe in Rajasthan cannot be made to compete with one of a scheduled tribe in parts other than Rajasthan. If the seat is reserved for a candidate to be selected from Rajasthan, then the competition should be only between the members of the scheduled tribes who are recognised in Rajasthan. According to Mr. Jain there is no hardship occasioned to the petitioner, on the contrary, another candidate who is a member of a scheduled tribe in Rajasthan will be deprived of getting an admission in case the petitioner is given this chance. There is no restriction for the petitioner to compete with other candidates in the general category. It is further submitted that the Constitution itself and the Scheduled Tribes Order issued under Article 342 of the Constitution lay down scheduled tribes in relation to the particular States or even in relation to particular localities and a person cannot be considered for other than these States or areas.

8. I have given my careful consideration to the arguments advanced by learned counsel for both the parties.

9. In order to determine whether or not a particular tribe is a scheduled tribe within the meaning of Article 342 of the Constitution of India, one has to look at the public notification issued by the President in that behalf. Article 342 itself uses the words 'that the tribes or tribal communities...... be deemed to be scheduled tribes in relation to that State or Union territory, as the case may be'. The words 'in relation to' are significant which mean that a scheduled tribe is to be deemed for that State only for which a public notification is issued by the President. The President, in exercise of the powers conferred by Clause (1) of Article 342 of the Constitution of India has promulgated Constitutipn (Scheduled Tribes) Order, 1950 and Section 2 of this order as already reproduced above clearly makes a mention that 'the tribes specified in Parts I to XVI of the Sch. to this Order shall in relation to the States to which those parts respectively relate, be deemed to be scheduled tribes'. From a perusal of Article 342 of the Constitution as well as the Constitution (Scheduled Tribes) Order, 1950, it is clear that a particular tribe can be considered as a scheduled tribe only in relation to that State for which the President issues a notification.

10. In my view, while claiming right to be considered against a reserved seat for students qualifying from Schools or Colleges from Rajasthan only such students can claim right against the reserved seat who are members of a scheduled tribe which is recognised in Rajasthan under the Presidential Order issued under Article 342 of the Constitution of India. A candidate has to be selected against the reserved quota from Rajasthan and as such the petitioner even if taken as a member of 'Halba' tribe, which is recognised as scheduled tribe in Maharash-tra, cannot claim any right of admission against the reserved seat for scheduled tribes to be selected by the Malviya Regional Engineering College, Jaipur. There is no bar for the petitioner or a person like him to compete with the candidates in the general category. He cannot claim of being a member of scheduled tribe in the State of Rajasthan. As I am taking this view I do not propose to decide the other questions that the petitioner is not even a member of scheduled tribe for the State of Maharashtra also, as no cogent and convincing material has beenplaced on record to show that he ever resided in Maharashtra. I have my own doubts to hold that the petitioner can claim any benefit belonging to a member of scheduled tribe even in Maharashtra, as the only facts mentioned in the writ petition are that the father of the petitioner was transferred from Bhopal (M. P.) to Jaipur (Rajasthan) in the month of July, 1976 and since then he was working here. The petitioner has not given any details of the place of his own education or the places of posting of his father.

11. In Parashram v. Shivchand, (AIR 1969 SC 597) their Lordships of the Supreme Court held that in the absence of a public notification issued by the President a person properly described as Mochi in Punjab does not fall within the caste of Chamars as included in Constitution (Scheduled Tribes) Order, 1950 and Constitution (Scheduled Castes) (Union Territory) Order, 1951 (as amended in 1966).

12. In V.B. Singh v. State of Punjab (ILR (1976) 1 Punj & Har 769), a Division Bench of Punjab and Haryana High Court held that the declaration of scheduled castes has relation only to that particular State or Union territory for which the declaration is made and not for other States or Union territories. It was further held that a member of a caste declared to be scheduled caste in one State and residing therein cannot be considered as belonging to scheduled caste of another State.

13. In Wasudeo Laxman Nandanwar v. Union of India (1974 Lab IC 141), a Division Bench of the Bombay High Court held as under:

'Constitution (Scheduled Tribes) Order, 1950, Clause (2) Sch. Part VII-A -- Resident in the localities -- Interpretation -- Resident can only mean a permanent resident of that place or a person having a permanent abode in that place'.

14. In K. Appa Rao v. Director of Posts & Telegraphs, Orissa, AIR 1960 Orissa 220), a Division Bench of Orissa High Court held as under (at p. 221) :--

'The phrase 'in relation to that State' occurring after the words 'Scheduled Castes' in Article 341(1) and the phrase 'in relation to that State' occurring after the words 'Scheduled Tribes' in Article 342(1) are not without significant. This shows that in order to get the benefit of being a member of a Scheduled Caste or Scheduled Tribe in the matter of public employment the person claiming itshould be a member of such caste or tribe in relation to the particular area or State where he is residing and where he seeks employment. Section 2 of the Public Employment (Requirement as to Residence) Act, 1957, cannot override the provisions of the Constitution, Paragraph 2 of the Constitution (Scheduled Tribes) Order, 1950, supports the above view since it provides that the tribes or tribal communities specified in Parts I to XII of the Sch. to that Order shall 'in relation to the States' to which those parts respectively relate, be deemed to be the Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those parts of that Schedule. It is, therefore, clear that the particular Scheduled Tribes specified in the various Parts of the Schedule to that Order are recognised as Scheduled Tribes only for the particular area included in those Parts of the Schedule and not anywhere else. So, any reference to Scheduled Tribes or Scheduled Castes must be intended to be relatable to the Scheduled Tribes or Scheduled Castes in relation to the particular area or State as appearing in the Schedule to that Order.'

15. Thus, in the view taken by me, no relief can be granted to the petitioner and the writ petition deserves to be dismissed. In the facts and circumstances of the case, there will be no order as to costs.


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