KAVITA KHORWAL Vs. DELHI UNIVERSITY

JUDGEMENT

(1.) COURTS in India have often traversed questions relating to the prince of equality and affirmative action. This constant engagement with affirmative action policies has not only raised questions relating to their validity and reach, but also crucial questions about the beneficiaries of such policies. This petition raises one such short, yet significant question.

(2.) THE petitioner avers that she is an originally listed Delhi Scheduled caste (hereafter "sc") candidate and appeared for the LLB entrance examination conducted by the first respondent ("the University") on 20. 06. 2004 She was at s. No. 118 in the SC category ranking and it is stated that she could not obtain admission in the course due to inclusion of ineligible SC candidates belonging to States/ Union territories (UTs) other than Delhi. It is alleged that by virtue of Articles 341 and 342 of the Constitution of India and notifications issued under those provisions, only Delhi listed scheduled caste candidates could be considered for admission in the SC category rank list in the entrance examination of the LL. B. examination of the University. She submits that by treating SC candidates from other States at par with SC candidates from Delhi, the University is conferring privileges that violate her rights under the constitution, as it equates dissimilar people as entitled under law for affirmative action policies in a specific State with others who are given similar status, though in different States or Union Territory. Therefore, she seeks an order directing the University to implement order no. Nos. 35/1/72/ru (SCT-V) dated 02. 05. 1975 and BC. 12025/2/76-SCT-I dated 22. 03. 1977 passed by the ministry of Home Affairs, Government of India, which mandates that the SC category quota be filled from Delhi listed Scheduled castes only.

(3.) THE Petitioner submits that the Constituent Assembly while debating provisions relating to reservations and equality, had agreed that those communities, which have been historically discriminated against should be given a " look in" and special treatment should be given to them. This intention is manifested from a reading of Article 15, Article 16, Article 341 and Article 342 of the Constitution. Under Articles 15 and 16 special treatment is to be given to those categories of people who are identified and notified as such, by notification of the President under Articles 341 and 342. It is submitted that in furtherance of this power, the President, in 1950, notified the list of castes and Tribes, who shall be the beneficiaries of policies implemented under article 16 and Article 15 in respect of different States and Union Territories. It is submitted that a plain reading of Article 341 would reveal that the benefit of reservation is to be provided only to those who belong to Scheduled castes and Scheduled Tribes, "in relation to" particular State or Union territory. It is in furtherance of this objective that in the year 1975, the union Ministry of Home Affairs (MHA) issued a notification declaring the terms and conditions which were applicable for reservation of seats in case of migration of Scheduled Castes and Scheduled Tribes from one state to another. Para 2 (ii) of the said order is reproduced as under: "where a person migrates from one state to another, he can claim to belong to sc or ST only in relation to the state to which he originally belongs and not in respect of the state to which he has migrated". In the year 1977, the MHA brought another notification clarifying the earlier order of 1975, i with regard to residence, wherein it was stated as under: "as required under Article 341 and 342 of the Constitution the President has with respect to every State and Union Territory and where it is State after consultation with governor of the concerned state issued orders notifying various castes and tribes as SC and ST in relation to that State or UT from time to time. The inter State area restriction have been deliberately imposed so that the people belonging to the specific community residing in specific area, which has been assessed to quality for SC or ST status, only benefit from the facilities provided for them. Since the people belonging to the same caste but living in different States/uts may not necessarily suffer from the same disabilities, it is possible that wo persons belonging to same caste but residing in different states/uts may not be treated to belong to SC/st or vice versa. Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the literal or ordinary sense of the word. On the other had it connotes the permanent residence of a person on the date of notification of the Presidential order scheduled his caste/tribe in relation to that locality. Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the presidential Order applicable in his case, say for example, to earn a living or seek education etc. , can also be regarded as scheduled caste or scheduled tribe, as the case may be, if his caste/tribe has been specified in that order in relation to his state/ut. But he cannot be treated as such in relation to place of his temporary residence not withstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any presidential Order. It is to ensure the veracity of this permanent residence of a person and that of the caste/tribe to which he claims to belong that the Government of India has made a special provision in the proforma prescribed for the issue of such certificate. In order that the certificates are issued to be deserving person it is necessary that proper verification based primarily on revenue record and if need be, through reliable inquires, is made before such certificates are issued. As it is only Revenue Authorities who, decide having access to relevant revenue records are in a position to make reliable inquiries. Government of india insists upon the production of certificates, from such authorities only. In order to be competent to issue such certificate therefore authority mentioned in Appendix 15 of this Brochure should b e the one concerned with the locality in which person applying for the certificate had his place of permanent abode at the time of the notification of the relevant order. Thus the Revenue Authority of one District would not be competent to issue such a certificate in respect to persons belonging to another District. No can such an authority of one state/ut issue such certificate in respect of persons whose place of permanent resident at the time of the notification of a particular Presidential Order, has been in a different state/union Territory. In the case of persons born after the date of notification of the relevant Presidential Order, the place of residence for the purpose of acquiring Scheduled Casts or Scheduled Tribes status, is the place of permanent abode of their parents at the time of the notification of presidential Order under which they claim to belong to such caste/tribe. "