HISHAM ABDUL KHADER Vs. UNIVERSITY OF KERALA

JUDGEMENT

(1.) The University of Kerala by Ext. P1 notification invited applications for appointment to the post of Lecturers in Chemistry, a post reserved for Muslim community. The petitioner and the third respondent belong to Muslim community. The third respondent was selected and appointed to the above post. But according to the petitioner, the third respondent is not eligible to be appointed to the post under the Muslim reservation quota because he is a native of Tamil Nadu. The third respondent was born and brought up in the State of Tamil Nadu. Therefore, according to him, the third respondent is not entitled to claim the benefit of reservation in the State of Kerala. That is the short question to be decided in this Original Petition.

(2.) Sri. Elvin Peter, learned counsel appearing for the petitioner relies on three decisions (of which two are of the Supreme Court and one of this Court) to clinch the above issue. The first decision is that of the Constitution Bench of the Supreme Court reported in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College 1990 (3) SCC 130 . In the above decision the facts were as follows: The petitioner therein was a native of Andhra Pradesh and belonged to Gouda Community. The above community was specified as a Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950. His father migrated to the State of Maharashtra and he was brought up in the above State. He was denied admission in the Scheduled Tribes quota in Maharashtra. The case came up before the Supreme Court and the question examined and decided by the Supreme Court was whether one who is recognized as a Scheduled Tribe in the State of his origin continues to have the benefits or privileges or rights in the State to which he migrates. In answering the above question, the Constitution Bench of the Supreme Court was called upon to interpret Art.341 and 342 of the Constitution and determine what the expression "in relation to that State" read in conjunction with "for the purpose of this Constitution" seeks to convey. Art.341 and 342 state that the President may specify the castes or tribes, as the case may be, in relation to each State or Union Territory for the purposes of the Constitution. Before specifying the castes or tribes under either of the two articles the President is, in the case of a State, obliged to consult Governor of that State. Therefore, according to the Supreme Court, when a class is specified by the President after consulting the Governor of a State, it is difficult to understand how that specification made "in relation to that State" can be treated as specification in relation to any other State whose Governor the President has not consulted. After referring to the debates in the Constituent Assembly relating to these Articles, the Supreme Court summed up as under:

(3.) The above dictum in Marri Chandra Shekar Rao's case was followed with approval in the decision reported in Action Committee v. Union of India 1994 (5) SCC 244 . The following paragraph of the above decision is worthwhile to be noticed: