CHANDER BHAVE Vs. STATE OF H.P.

JUDGEMENT

(1.) A very short question is involved for consideration in this petition filed under Article 226 of the Constitution of India by the petitioner, who is seeking admission in the Post Graduate Course in Indira Gandhi Government Medical College, Shimla. The petitioner belongs to the Scheduled Tribe category. He is a Gujjar and undoubtedly as per the Schedule relating to Himachal Pradesh of the Constitution (Scheduled Tribes) Order, 1950, Gujjar is a Schedule Tribe appearing in the said Schedule. He applied for admission in the Post Graduate Courses in the aforesaid Medical College against the Schedule Tribe category. Respondent No. 3 also claims to be a Schedule Tribe. She actually belongs to Meghalaya State and claims to be a Khasi, which according to her, is a Scheduled Tribe as per the entries constituting the Schedule for Meghalaya State of the aforesaid 1950 Presidential Order. She also applied for admission in the post Graduate Courses in the aforesaid Medical College against the Schedule Tribe category. It appears that respondents No. 1 and 2 have considered her case against Schedule Tribe quota and that has given raise to the filing of this petition, as far as the petitioner is concerned because the petitioners contention is that respondent No. 3 even though may be a Schedule Tribe as per Meghalaya State is concerned, cannot be considered as a Schedule Tribe for the State of Himachal Pradesh and hence her candidature against Schedule Tribe quota is wrong and illegal. Petitioners grievance is that there being limited number of seats especially in the Obstetrics and Gynecology discipline (where there is just one seat against Schedule Tribe quota), - the contest is in between the. petitioner and respondent No. 3 and if respondent No. 3 despite not being Schedule Tribe in Himachal Pradesh State is allowed to be considered against that quota, the petitioner, who is a Schedule Tribe in Himachal Pradesh State will loose his chance of his consideration against that quota . "

(2.) Mr. Rajiv Sharma, learned senior Counsel for the petitioner had put reliance upon two judgments of the Supreme Court, one in the case of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and others, reported in 1990(3) SCC 130 and other in the case of Action Committee on issue of Caste Certificate to Schedule Castes and Schedule Tribes in the State of Maharashtra and another v. Union of India and another, reported in 1994(5) SCC 244.

(3.) We have heard the learned Counsel for the parties. The 1950 Presidential Order has been issued in terms of Article 342 of the Constitution of India. The aforesaid two judgments while clearly interpreting Article 342 and the scope of the 1950 Presidential Order have held that Schedule Tribes are relatable to a particular State and that if a person is a Schedule Tribe in the Schedule of a particular State as per 1950 Presidential Order, he or she cannot ipso facto be a . Schedule Tribe in the other State. As per the ratio laid down in the aforesaid two judgments, the entitlement of Schedule Tribe has to be as per the entries in the Schedule of that particular State in the 1950 Presidential Order. That being the case and undoubtedly Khasi being a Schedule Tribe in Meghalaya and it not being a Schedule Tribe in Himachal Pradesh, respondent No. 3 is not eligible for being considered against Schedule Tribe quota for admission in an educational institution of Himachal Pradesh Government. We, therefore, held that respondents No. 1 and 2 wrongly considered respondent No. 3 and a Schedule Tribe candidate by including her in the Schedule Tribe list of a candidate. We further hold that respondent No. 3 not being a Schedule Tribe in Himachal Pradesh is not entitled for such consideration against the Schedule Tribe quota.