A common form of discrimination, within humanity, in India is the practice of untouchability. Scheduled Castes are the primary targets of this medieval practice, a practice, which is outlawed by the Constitution of India. Scheduled Tribes are generally those who have been living in tribal areas located far away from modern civilization. The intent and purpose of providing reservation to SCs and STs is based upon the prevailing social status of their communities. The main objective of the Indian reservation system is to increase the opportunities for enhanced social and educational status until it becomes equal to that enjoyed by an average member of other communities of the underprivileged communities and, thus, enable them to take their rightful place in the mainstream of Indian society. The reservation system exists to provide opportunities for the members of the SCs and STs to increase their representation in the State Legislatures, the Executive Organ of the Union and States, the 'public' institutions etc. With few exceptions, all jobs under certain State governments are reserved for those who are domiciled within the jurisdiction of that government.
The question that calls for consideration in the present case is as to whether a person declared as Schedule Caste in their own State can claim benefit of reservation in the State of UP for seeking appointment to the Public Post.
The New Okhla Industrial Development Authority (herein after referred to as the NOIDA) invited applications from eligible candidates for the post of Junior Assistant and Mali. Application forms were submitted by the petitioners along with certificate that they belong to the Scheduled Caste category issued from their state. Petitioner Nos. 1,2,5,7 & 8 were appointed as Junior Engineer and Petitioners No. 3, 4 & 6 have been appointed as Mali vide order dated 12.8.1997. It is further contended that advertisement did not contain any stipulation that a person belonging to Scheduled Caste living/domicile in the State of UP alone can apply for the said post. They continued to work on the said post till 14.5.2007 when an order of termination of their services were passed by the authority. Impugned order was passed on the ground that all the petitioners have been wrongly appointed from the reserved category as they did not belong to the State of U.P. A person belonging to reserved category from other State cannot claim the benefit of reservation in the State of UP. Reliance has been placed on various judgements of this Court as well as Hon'ble Apex Court on the issue involved herein .
It is worthwhile to mention that the Hon'ble Single Judge of this Court vide its order dated 1.6.2007 allowed the writ petition by setting aside the impugned order dated 11.5.2007. A direction was issued that the petitioners shall be taken back on the post they were working with the respondents forthwith and they shall be paid salary with all consequential benefits.
State filed an appeal against this order being Special Appeal No. 797 of 2007 (Chief Executive Officer NOIDA & others Vs Paramjit Singh and others). Division Bench of this Court after analysing the whole gamut of controversy involved in this writ petition found that the learned Single Judge had not determined the validity of the order passed by the NOIDA in terminating the services of the respondents employee. The Court observed that no finding has been recorded by the Learned Single Judge regarding the correctness of the validity of the said order. It is under these circumstances direction was issued to re-consider the matter and pass order after addressing the issue regarding the validity of appointment order of the petitioners. It is under these circumstances the present writ petition is before this Court.
Heard learned counsel for the parties and perused the material on record.
Facts in this case are not in dispute. Petitioners belong to the State of Punjab and were declared as Scheduled Caste as notified by the State of Punjab which certificates were annexed by the petitioners with their forms. They were selected and appointed on the posts specified herein above by considering their appointment in the reserved category of Scheduled Caste.
On the other hand stand of the respondents was that the petitioners were not under law entitled for being appointed as they belong to the State of Punjab from where they have been declared as Scheduled Caste Category. Petitioners did not fall under the category of Scheduled caste as declared by the State of U.P. and are not domicile of State of UP. Their appointment orders were issued due to inadvertence and their selection was void ab-initio.
It is further averred that in exercise of powers under Article 341 of the Constitution and the G.O. dated 10.7.1986 provides that the scheduled caste candidates from respective states would be entitled for reservation only in their State. In the civil service of the State of U.P. the benefit of reservation to Scheduled Caste will be available only to 66 sub caste which have been given in the list of scheduled caste category in the State of U.P. notified under G.O. Dated 10.7.1986. The caste certificate furnished by the petitioners were not in respect of notified caste in the state of U.P..
Before proceeding in the matter, it is necessary to observe that the Division Bench of this Court in Special appeal (supra) observed after setting aside the order of the learned Single Judge that the validity of the appointment letters issued in favour of the petitioners are required to be redetermined. The validity of the impugned orders in the present context has to be examined on the question as to whether the petitioners who were declared as belonging to the Scheduled Caste category by their state could be appointed in the State of U.P. under the said category.
This issue is no longer res-integra as various pronouncement of this Court as well as Hon'ble Apex Court have set at rest this controversy. While examining this issue in the light of the Constitutional scheme, it is necessary to observe that Article 341 and 342 of the Constitution provides that caste or tribes have to be specified in relation to given State or Union Territories. This means that a given caste or tribes can be Scheduled Caste/Scheduled Tribes in relation to the State or Union Territories for which it is specified. Underlying principle is that while indicating a particular caste or tribes for inclusion in the list of Scheduled Caste/Scheduled Tribes or Backward Caste in the given state would dependent upon the nature and extent of the disadvantage and social hardships suffered by that caste. The Principle underlying in declaring a particular tribe or caste of people as belonging to the reserved category depends upon such disadvantage on account of economic and social disadvantage. The intent and purpose is to uplift them from quagmire of poverty. It is in the light of this that the Hon'ble Apex Court in the case of U.P. Public Service Commission Allahabad Vs Sanjay Kumar Singh (2003) 7 SCC page 657 has held that an ordinary residents of the other State whose caste is not in the reserved category in the State of UP is not entitled to reservation in 'services and posts' under the Act even if they belong to the reserved category in their own State. In M.C.D. Vs Veena (2001) 6 SCC 571 the Hon'ble Apex Court has observed as under:-
"The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different."(per Rajendra Babu, J.)"
The Hon'ble Apex Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in State of Maharashtra Vs Union of India, (1994) 5 SCC 244 has observed as under:-
"By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father by the prescribed authority of the State of the father's origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. Therefore, the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate. This was reiterated in a subsequent letter dated 15.10.1987 addressed to Smt. Shashi Misra, Secretary, Social Welfare, etc., in the State of Maharashtra. In paragraph 4 of that letter it was specifically stated:
"Further, a Scheduled Caste person, who has migrated from the State of his origin, which is considered to be his ordinary place of residence after the issue of the first Presidential Order, 1950, can get benefit from the State of his origin and not from the State to which he has migrated."
While examining the import of the aforesaid judgements, it clearly emerges that a person belonging to reserved category cannot claim the benefit of said reservation in any other State as already observed herein above. Various aspects have to be considered while declaring the particular tribes/caste as belonging to the reserved category depending upon the social, economic environment of that area. It is not necessary that social and economic environment of two states can be same.
The Supreme Court in Action Committee vs. Union of India: 1994 (5) SCC 244 was concerned with the following question mentioned in the first paragraph of that case. 'Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State B, will that person be entitled to claim the privileges and benefits admissible to person belonging to the Scheduled Caste and or Scheduled Tribes in Sta B?' The Supreme Court after considering the different notifications issued by the Government of India stated the practice of Government of India in the following terms:
''It will thus, be seen that so far as the Government of India is concerned, since the date of issuance of the communication dated 22.3.1977, it has firmly held the view that Scheduled Caste/Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, can not be treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he can not claim benefit as such in the later State.'' The Supreme Court (in the Action Committee case) answered the question framed by it in the following terms:
''Coincidently it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements, which constitute the point for specification, may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution.'' The Supreme Court in MCD vs. Veena 2001 (6) SCC 571 was concerned with similar question regarding OBC in the national capital of Delhi held as under:
''Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements, which constitute the data for specification, may also be entirely different."
Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste.
The Supreme Court (in the Veena case) also held that the OBC certificates has to be issued by the authorities mentioned in that certificate namely by the officers in Delhi and the certificate issued by any other authority would not be accepted. The Court said:
''A careful reading of this notification would indicate that OBCs would be recognized as such in the Government of the National Territory of Delhi as notified in the notification dated 20.1.1995 and further for the purpose of verification of claims for belonging to castes/communities in Delhi as per the list notified by the National Capital Territory of Delhi the certificate will have to be issued only by the specified authorities and certificates issued by any other authority would not be acceptable."
The aforesaid two cases indicate that the law of reservations regarding resident of the other State is the same so far as SC/ST and the OBC are concerned. In order to obtain benefit of reservation in any State, the person should be ordinary resident of that State and he should produce a certificate from an Officer/Authority as indicated by that State.
The petitioners admittedly are not ordinary resident of the State of UP and thus they have been rightly denied benefit of reservation. A person can not claim parity or equality in such situation and the State can not be compelled to commit an illegality.
Mere contention of the petitioners that this condition was not stipulated in the advertisement notice would not itself amount to waiver. Advertisement notice issued has to be in consonance with the rules which clearly in the present case proscribe a person from seeking the appointment in the reserved category in another State. Second question that has been raised in this writ petition is that the rules of natural justice has not been followed in the present case. It is not in dispute that no notice has been issued in the present case. Petitioners services have been terminated by paying them three months of pay in lieu of order of termination. Principles of natural justice cannot be straight jacket formula. In order to invoke this principle a person must show that he is prejudiced by non compliance of the said rules. The word "prejudice" would meand that a person has valid reasons to defend the proposed action but on account of non compliance of the said rules he has been denied that right. In the present case the only question that was required to be determined was as to whether petitioners can claim appointment under the reserved category in the State of UP when they admittedly belong to the State of Punjab. This is an issue which was required to be determined on the interplay of legal provisions.
Petitioners could not possibly have taken any other stand except they were liable to seek appointment in the State of U.P. In my opinion, no prejudice has been caused to the petitioners while issuing their orders of termination. They were not prejudiced by non observance of the rules of natural justice as appointment was in violation of rules and law as settled by the Hon'ble Apex Court.
In the result, the Writ Petition Nos. 25844 of 2007 & 32345 of 2007 fail and are hereby dismissed. The petitioners are not entitled to appear as reserved candidate in the state of UP.
In Civil Misc Writ Petition no. 29552 of 2007 a prayer has been made for issuance of a direction to the respondents not to evict the petitioners from the accommodation allotted to them by the NOIDA. Such prayer cannot be allowed in view of the fact that their appointments have been held illegal in the reserved category and thus they are not entitled to retain the accommodation provided to them on account of their employment. Hence this writ petition is dismissed as not maintainable.
Dated: 01/06/2012 RKS/