KANNAYA DEVJIBHAI BORISA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner in these writ petitions have claimed that they are entitled to the benefits of special provisions for Scheduled Castes in the State of Maharashtra in matters of admission to education institutions or employment/promotion to the posts under the said State. According to the respondents each of the petitioners must be deemed to have migrated to the State of Maharashtra after the date of the issue of the Constitution (Scheduled Castes) Order, 1950 and therefore they are not entitled to enjoy the said benefits/protections for Scheduled Tribes in this State notwithstanding the fact that in the Constitution (Scheduled Castes) Order, 1950, the castes to which the petitioners belong have been specified as a Scheduled Castes both in relation to the State of Maharashtra as also the State from which they had migrated. The petitioners have been granted caste certificates by the appropriate authorities to the effect that they belong to a caste which is recognised as a Scheduled Caste. But each one of their certificate contain endorsements to the effect that the holder of the certificate is not entitled to any concession, facility of any nature whatsoever extended to the Schedule Castes by the Government of Maharashtra. The said endorsements in the Caste Certificates granted to the petitioners have been purported to made according to the instructions issued pursuant to the Government of Maharashtra Resolution No. CBC-1084/54577/ (1813)BCW-V dated the 1st November, 1985. The said resolution in its turn is based on certain letters issued by the Government of India on the subject of issue of Scheduled Caste certificates to persons who had migrated from one State to another for the purpose of employment, education, etc. , vide letter No. BC 16014/1/82-S. C. and BCD-1, Government of India, Ministry of Home Affairs, New Delhi dated 22nd February, 1985. The revised instructions 19 (a), (b), (c) and (d) read as follows :-

(2.) IN our view the impugned instructions, issued pursuant to the Government of Maharashtra Resolution dated 1st November, 1985 were clearly ultra vires and therefore, ought to be struck down. We have already mentioned that the said instructions were purported to be based upon the letter of the Government of India dated 22nd February, 1985 with the object of removal of difficulties in the way of issue of Scheduled Caste and Scheduled Tribe certificates of migrants from one State to another for the purpose of employment, education, etc. , from the State from which they had migrated. The first paragraph of the said letter had therefore instructed that the prescribed authority of the State or the Union Territory to which a person migrated from another State may issue caste certificate on production of a genuine certificate issued to the applicants father by the prescribed authority of the State of origin of his father. The said certificate shall be issued irrespective of whether the caste or tribe in question is a Scheduled one or not in relation to the State or Union territory to which the person had migrated. But these instructions regarding issue of a certificate mentioning that the caste of a person was a Scheduled one only in the State of his origin could not be made applicable in case after migration the person concerned had become permanent resident in the State to which he had migrated. Paragraph 2 of the Government of India letter dated 22nd February, 1985 purported to suggest that when for seeking education, employment, etc. , a person comes from one State to another, he would not be considered to be a permanent resident therein. In other words, when merely for obtaining education or for the purposes of employment without any intention to permanently reside, person resides in a State other than the State of his origin, he would be considered to be a temporary resident and not a permanent resident. Neither the Government of India letter dated 22nd February, 1985 nor the instructions of the Government of Maharashtra regarding issue of Caste Certificates can affect a right to claim the benefits of protection afforded to Scheduled Castes to a person whose caste has been specified as a Scheduled Caste in the Constitution (Scheduled Castes) Order, 1950 in relation to Maharashtra on the ground that he had migrated and taken up permanent residence in the State of Maharashtra after the date of the issue of the said Presidential Order. In case an application is made by a person for grant of a caste certificate by the prescribed authority in the State of Maharashtra, it would be a question of fact in each case, whether he is a permanent resident within the State of Maharashtra and secondly whether his caste in relation to the State of Maharashtra has been specified by the Constitution (Scheduled Castes) Order, 1950. For the purposes of the Constitution, the prescribed authority may satisfy itself whether the applicants presence within Maharashtra was temporary or whether his permanent abode is within the State of Maharashtra. The relevant facts are animus or the intention of a person who originally belonged to a place which now do not form the part of the State of Maharashtra and also whether in fact the applicant has his permanent residence. In case on the date of the making of the application for grant of a caste certificate a person establishes both his intention or animus to reside permanently in the State and also the factum of his permanent residence within the State of Maharashtra, he would be entitled to enjoy benefits for Scheduled Tribes in this State. The prescribed authority would be transgressing the provisions of Article 341 of the Constitution by making endorsement in the Caste Certificate issued to such persons that the holder will not be entitled to benefits/facilities in the State of Maharashtra inspite of the fact that the caste of the holder had been specified as a Scheduled Caste in relation to Maharashtra in the Constitution (Scheduled Castes) Order, 1950. The position might be otherwise in cases where for the purpose of education or employment, a person migrates from another State to the State of Maharashtra without taking up permanent residence and where his caste is specified as a Scheduled Caste only in relation to the State of his origin and not in relation to the State of Maharashtra. In such a case a person whose caste is not specified in relation to Maharashtra as a Scheduled Caste, the impugned instructions may be applicable. But in relation to persons whose caste is specified as a Scheduled Caste both in relation to the State of his origin and the State of Maharashtra, upon taking up his permanent residence in the State of Maharashtra, the benefits for Scheduled Caste can not be denied to him on the ground that his migration must be deemed to have taken place after a particular date Clause (1) of Article 341 of the Constitution vested the President with the power to issue by public notification orders specifying the caste or races or tribes or parts of or groups within the caste, races or tribes which shall for the purpose of the Constitution be deemed to be Scheduled Caste in relation to that State or Union Territory as the case may be. Clause (2) of Article 341 has given exclusive authority to the Parliament to enact law for inclusion or exclusion from the list of Scheduled Caste specified in the presidential Order under Article 341 (1 ). The said powers can not be usurped by any other authority by issuing directions that a member of a caste specified in the Constitution (Scheduled Castes) Order, 1950, in relation to a particular State shall not be deemed to be a Scheduled Caste in that State only on the ground that he or his forefathers had become permanent residents in that State after the date of the issue of the Presidential Order under Article 341 of the Constitution. In other words, the identification under Article 341 (1) of the Scheduled Castes for the purpose of the Constitution was to be initially made by the President of India and thereafter inclusion or exclusion from the Presidential Order issued under Clause (1) of Article 341 of the Constitution is to be done by the Parliament. No other authority or body has the power to modify and/or alter the specification of the castes, races, tribes or other parts of or groups as Scheduled Cases for the purpose of Constitution in relation to a particular States or Union Territory.

(3.) THE impugned revised Instructions for the issue of caste certificates to persons belonging to Scheduled Castes, etc. , contained in the appendix to the aforesaid Government of Maharashtra Resolution dated 1st November, 1985 may be examined. We have already mentioned that the said Instructions were primarily for removal of difficulty and hardship in the way of obtaining caste certificates by those who has migrated for the purpose of education, service from one State in India to another. According to the said Instructions, the migrants have been classified into several categories. The first class comprises of migrants from one State to another, a State, in which they are not specified as a scheduled caste. Therefore in respect of such persons, instructions might be given that their claim to belong to Backward Class shall be related only to the State of their origin and where they have their permanent abode. Clause (b) (i) of instruction No. 19 does not apply to the present cases because the castes of the petitioners have been specified as a Scheduled Castes both in relation to the State from which their forefathers or their father might have migrated to this State and also in relation to the State of Maharashtra where they now ordinarily reside. In respect of them, the Instructions 19 (b) (ii) is to the following effect: