A.H. Ahmadi, J.@mdashWhere 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 with the same nomenclature is specified for the purposes of the
Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and
benefits admissible to persons belonging to the Scheduled Castes and/or Scheduled Tribes in State B, is the neat question raised in this petition
brought under Article 32 of the Constitution by one Shri Devidas Kuberdas Kantharia in his personal capacity as well as in his capacity as the
Chairman of Petitioner No. 1 Committee. The grievance sought to be projected in this petition, which has been brought in a representative capacity
and by way of a Public Interest Litigation, is that State B denies the benefits and privileges admissible to such persons belonging to Scheduled
Castes and Scheduled Tribes who have migrated from State A or any other State. Before we set out the specific nature of the grievance it may be
advantageous to refer to the provisions in the Constitution which have a bearing on the question at issue.
2. In part XVI of the Constitution special provisions relating to certain classes including Scheduled Castes and Scheduled Tribes have been made.
Articles 330 and 332 provide for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People and in the Legislative
Assemblies of the States. Article 335 enjoins that claims of Scheduled Castes and Scheduled Tribes shall be taken into consideration in making all
appointments to services and posts in connection with the affairs of the Union or of a State. Article 338 provides for the appointment of a Special
Officer for Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for them and to report to the
President upon the working of those safeguards. Then come Articles 341 and 342 which may be reproduced at this stage:
341. Scheduled Castes. - (1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the
Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the
purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.
342. Scheduled Tribes. - (1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the
Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall
for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
Clause (2) of Article 341 empowers Parliament to include or exclude by law from the list of Scheduled Castes or Scheduled Tribes specified in the
notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe. Similar provision is to be found in
Clause (2) of Article 342 in relation to any tribe or tribal community, etc. Both these provisions further state that save as aforesaid a notification
issued under Clause (1) of the respective Articles shall not be varied by any subsequent notification.
3. On a plain reading of Clause (1) of Articles 341 and 342 it is a manifest that the power of the President is limited to specifying the castes or
tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union
Territory, as the case may be. Once a notification is issued under Clause (1) of Articles 341 and 342 of the Constitution, the Parliament can be law
include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited
purpose the notification issued under Clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or
tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a
Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be
concerned while dealing with the grievance made in this petition.
4. The Petitioners herein are aggrieved because the state of Maharashtra has denied the benefits and privileges available to Scheduled Castes and
Scheduled Tribes specified in relation to that State to members of the Scheduled Castes and Scheduled Tribes belonging to other States who have
migrated from other States to the State of Maharashtra. These benefits and privileges are denied on the basis of certain circulars and letters issued
by the Government of India and consequential instructions issued by the State of Maharashtra indicating that members belonging to the Scheduled
Castes and Scheduled Tribes specified in relation to any other State shall not be entitled to the benefits and privileges accorded by the State of
Maharashtra unless the concerned person is shown to be a permanent resident of the State of Maharashtra on August 10, 1950 in the case of
Scheduled Castes and September 6, 1950 in the case of Scheduled Tribes. These are the dates on which the President first promulgated The
Constitution (Scheduled Castes) Order, 1950 and The Constitution (Scheduled Tribes) Order, 1950. The Petitioners, therefore, contended that
the denial of the benefits and the privileges by the State of Maharashtra is violative of the fundamental rights conferred on citizens by Articles 14,
15(1), 16(2) and 19 of the Constitution, besides being, contrary to the letter and spirit of Articles 341 and 342 of the Constitution. The petitioners
contend that a bare perusal of the Constitution (Scheduled Castes) Order, 1950 and The Constitution (Scheduled Tribes) Order, 1950 as
amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 would show the same castes and tribes specified in
respect of more than one State. Those belonging to the Scheduled Castes and the Scheduled Tribes, wherever situate, are economically
backward. Besides on account of Social and economic backwardness they have to suffer a host of indignities and atrocities and are very often
compelled to migrate from one State to another in search of livelihood or to escape the wrath of their oppressOrs. Earlier they did not experience
any difficulty in obtaining caste/tribe certificates to secure benefits available to the Scheduled Castes and Scheduled Tribes in the State of
Maharashtra. The situation, however, changed drastically after the Government of India issued a communication addressed to Chief Secretaries to
all State Governments/Union Territories on March 22, 1977.
5. Before we refer to the contents of the communication dated March 22, 1977 it may be advantageous to notice the relevant provisions of the
Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950 made in exercise of powers conferred by
Article 341(1) and Article 342(1) respectively of ''he Constitution. In the order first mentioned Clause (2) provides as under:
2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts to (XXII) of
the Schedule to this order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as
regards member thereof resident in the localities specified in relation to them in those Parts of the Schedule.
Clause (2) of the second mentioned Order reads as under:
2. The Tribes or tribal communities, or part of, or groups within, tribes or trial communities, specified in Parts I to XIX of the Schedule to this
Order shall, in relation to the State to which those parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof
residents in the localities specified in relation to them respectively in those Parts of that Scheduled.
6. The Government of India in the Ministry of Home Affairs noticed that certificates belonging to a particular Scheduled Caste/Scheduled Tribe
were not issued strictly in accordance with the principles governing the issue of such certificates presumably on account of lack of understanding of
the legal position regarding the concept of the term ""residence"" on the part of the concerned authorities. With a view to clarifying the legal position
the communication of March 22, 1977 came to be issued. The relevant part of that communication may be reproduced for ready reference;
As required under Articles 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 the Governor of the concerned State, issued orders notifying various Castes and Tribes as Scheduled Castes and
Scheduled Tribes in relation to that State or Union Territory from time to time. The inter-state area restrictions have been deliberately imposed so
that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for the Scheduled Caste or
Scheduled Tribe Status, only benefit from the facilities provided for them. Since the people belonging to the same caste but living in different
State/Union Territories may not both be treated to belong to Scheduled Caste/Tribe 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 liberal or ordinary sense of the word. On the other
hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribes in relation
to that locality. Thus a person who is temporarily away from his permanent place or 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 a Scheduled Caste or a Scheduled Tribe,
as the case may be, if his caste/tribe has been specified in that order in relation to his State/Union Territory. But he cannot be treated as such in
relation to the place of his temporary residence notwithstanding the fact that the name1 of his caste/tribe has been scheduled in respect of that area
in any Presidential Order.
The communication further states that with a view to ensuring the veracity of permanent residence of a person and that of the caste/tribe to which
he claims to belong, the Government of India made a special provision in the proforma proscribed for the issue of such certificates. In order to
ensure that competent authorities should alone issue such certificates the Government of India (Department of Personnel and Administrative
Reforms) by a letter dated August 6, 1975 indicated the authorities locality-wise who should issue the certificates. The communication then
proceeds to add:
Thus the Revenue Authority of one District would not be competent to issue such a certificate in respect of persons belonging to another District.
Nor can such an authority of one State/Union Territory issue such certificates in respect of persons whose place of permanent residence at the time
of the notification of a particular residential Order, has been in a different State/Union Territory.
This was emphasised because only the revenue authorities of the locality of which the individual is the resident alone would have access to revenue
records to be in a position to make reliable enquiries before the issuance of the certificate. In regard to persons born after the date of the
notification of the relevant Presidential Order, the communication states that the place of residency for the purpose of acquiring Scheduled Caste or
Scheduled Tribe certificate is the place of permanent abode of their parents at the time of the notification of the Presidential Order under which
they claim to belong to such a caste/tribe.
7. Subsequent to the issuance of the said communication by the Government of India, the Commissioner for Scheduled Castes and Scheduled
Tribes submitted his 22nd Report wherein he pointed out that instances had come to his notice where false certificates were produced by Non-
Scheduled Caste/Scheduled Tribe persons to secure government service or admission to educational institutions. The report disclosed that such
certificates were being issued without the authority issuing the same being even aware of basic requirements necessary for such certificates. On the
basis of the recommendations made by the Commissioner and having regard to the procedure adopted by the State of West Bengal which was
commended for acceptance by the Commissioner, the Government of Maharashtra, in modification of the existing orders directed that caste
certificates issued by the Special Executive Magistrates should be treated as ''preliminary certificates'' and final certificates should be issued only by
the Executive Magistrate authorised by the District Magistrate in that behalf. It was also directed that Special Executive Magistrates should certify
only the castes to which they themselves belonging. The Government state that if despite these instructions incorrect caste certificates are issued, a
serious view will be taken. In the instructions appended to the said Government Order it was, inter alia stated in Paragraphs 13 and 19 as under:
13. Caste certificates should be issued only to those who have ordinary residence of the place within the jurisdiction of the competent authority.
Ordinary residence means residence which is not for the purpose of service, employment, education, confinement in jail, etc. In short, it means
permanent residence and not a temporary residence.
19. Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or a scheduled Tribe only in relation to the
State from which he has migrated. The competent authority should not, therefore, issue a caste certificate to a person from other State, whether he
is ordinary (sic) residing in this State or not.
By the subsequent letter of February 12, 1981, it was further clarified that in order to become eligible for being treated to be a member of
Scheduled Caste/Tribe in relation to the State of Maharashtra person should be a permanent resident of the State of Maharashtra before August
10, 1950 and September 6, 1950, respectively, the dates of the notifications of the respective Presidential Orders of 1950 scheduling the
Castes/Tribes in relation to the State of Maharashtra. Since there was no State of Maharashtra in 1950 it would be reasonable to understand it to
mean the geographical are a now forming part of the State of Maharashtra. At the foot of the proforma of the Certificate the following note was
appended:
Note : The term ""ordinarily reside(s)"" used here will have same meaning as in Section 20 of the Representation of Peoples Act, 1950.
Section 20 of the Representation of the People Act, 1950, reads as under:
20 Meaning of ""ordinarily resident"". - (1) A person shall not be deemed to be ordinary resident in a constituency on the ground only that he owns,
or is in possession of, a dwelling house therein.
(1A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
(IB) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the
Constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from
that constituency in connection with his duties as such member.
(2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental
illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be
ordinarily resident therein,
(3) any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having
such service qualification, he would have been ordinarily resident on that date.
(4) Any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the
provisions of this sub-section apply, shall be deemed to be ordinarily resident on any date in the constituency in which, but for the holding of any
such office, he would have been ordinarily resident on that date.
(5) The statement of any such person as is referred to in Sub-section (3) or Sub-section (4) made in the prescribed from and verified in the
prescribed manner, that but for his having the service qualification or but for his holding any such office as is referred to in Sub-section (4) he
would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the contrary, be accepted as correct.
(6) The wife of any such person as is referred to in Sub-section (3) or Sub-section (4) shall, if she be ordinarily residing with such person be
deemed to be ordinarily resident in the constituency specified by such person under Sub-section (5).
(7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference
to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the Election Commission.
(8) In Sub-sections (3) and (5) ""service qualification"" means-
(a) being a member of the armed forces of the Union; or
(b) being a member of a force to which the provisions of the Armed Act, 1950 (46 of 1950), have been made applicable whether with or without
modifications; or
(c) being a member of an armed police force of a State, who is served outside that State; or
(d) being a person who is employed under the Government of India, in a post outside India.
In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment
or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had
migrated. To remove this difficulty experienced by them the earlier instructions contained in the letter of March 22, 1977, and the subsequent letter
of March 29, 1982, were modified, in that, the prescribed authority of a State/Union territory was permitted to issue the Scheduled
Caste/Scheduled Tribe Certificate to a person who had migrated from another State on production of a genuine certificate issued to his father by a
prescribed authority of the State of the father''s origin except where the prescribed authority considered a detailed enquiry necessary through the
State of origin before issue of certificate. It was further stated that the certificate will be issued irrespective of whether the Caste/Tribe in question is
Scheduled or not in relation to the State/Union territory to which the person has migrated. Of course, this facility did not alter the Scheduled
Caste/Tribe status of the person in relation to the one or the other State. The revised form of the certificate was circulated. Further, it was clarified
that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of education, employment,
etc., will be deemed to be Scheduled Caste/Tribe of the State of his origin only and will be entitled to derive benefits from that State and not from
the State to which he had migrated. 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 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 concerned person 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 re-iterated in a subsequent letter dated October 15, 1987 addressed to Smt. Shashi Mishra, Secretary, Social Welfare, etc.,
in the State of Maharashtra. In paragraph 4 of that letter it was specifically stated:
Further, a Scheduled Caste persons, 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.
So stating the proposal regarding reduction in the period of cut off point of 1950 for migration was spurned. It was stated that the proposal could
have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on All India basis which, it was said, was not
feasible in view of the provisions of Articles 341 and 342 of the Constitution. It will thus, be seen that so far as the Government of India is
concerned, since the date of issuance of the communication dated March 22, 1977, it has firmly held the view that a 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, cannot be
treated as a person belonging to the Scheduled Caste/Scheduled Tribe of the State to which he migrates and hence he cannot claim benefit as such
in the latter State.
8. The petitioners contended that having regard to the difficulty experienced by persons belonging to the Scheduled Castes/Scheduled Tribes, both
in the State of origin and in the State to which they migrated, they were obliged to move the High Court for seeking an appropriate writ or direction
on the plea that the cut off date was arbitrarily fixed and was therefore violative of Articles 14 and 19 and Articles 341 and 342 of the
Constitution, Reference has been made by the petitioners to four judgments delivered by the Bombay High Court (i) W.P. No. 1572 of 1980
Bhiwaji Eknath Kawle v. State of Maharashtra, decided by the Aurangabad Bench of the Bombay High Court comprising Kanade and
Deshpande, JJ. on February 3, 1982 (ii) W.P. No. 2499 of 1983 Rajesh Khusalbhai Patel v. State of Maharashtra and Ors. decided by the
Bombay High Court, Pendse, J. On September 19, 1984 (iii) W.P. No. 4018 of 1987 Rajesh Arjun Bhai Patel v. State of Maharashtra and Ors.
decided by the Bombay High Court, Daud, J. on July 31, 1989 and (iv) W.P. No. 2830 of 1989 K.D. Borisa and Ors. v. State of Maharashtra
and Ors. decided by the Division Bench of Bombay High Court, Mookerjee, C.J. and Sharda Manohar, J., dated September 28, 1989 granting
reliefs to the petitioners. The petitioners contend that notwithstanding the pronouncements of the Bombay High Court in the aforesaid writ petitions
persons belonging to the Scheduled Castes/Scheduled Tribes continue to experience difficulties in securing certificates from the State of origin as
well as the State to which they had migrated on account of the instruction issued by the Government of India as contained in the communication
dated March, 22, 1977 and the subsequent communications referred to earlier. The petitioners have, therefore, move this Court so that an
authoritative pronouncement of this Court may introduce a uniform pattern in regard to the issuance of certificates to the persons belonging to the
Scheduled Castes/Scheduled Tribes without being compelled to knock at the doors of different High Courts.
9. In the counter filed on behalf of the State of Maharashtra, it is contended that the question raised in this petition has been conclusively answered
by a Constitution Bench of this Court in 271010 , and as such the petition is liable to be dismissed. Without prejudice to this preliminary
contention, it is pointed out that the expression ''in relation to that State'' read with the words ''for the purposes of this Constitution in Articles 341
and 342 leave on manner of doubt that the specification made is ''in relation to that State'' for which it is made i.e. the State of origin and not the
State to which a person migrates. That is because the concept of backwardness in Articles 15 and 16 is a relative one varying from area to area
and region to region and hence it is not permissible to generalise any Caste or any Tribe as a Scheduled Caste or as Scheduled Tribe for the whole
of the contrary. Therefore, a person belonging to a Scheduled Caste or a Scheduled Tribe in relation to a State would require necessary protection
and benefits in that State to bring about equality but the social environment of the State to which he migrates may not be the same as in the State of
his origin and therefore he cannot claim the benefits and privileges available to Scheduled Castes and Scheduled Tribes in the State to which he
migrates. Therefore, the contention of the petitioners that on migration the caste or Tribe of the concerned person does not change and if such
person is denied the concessions, benefits and privileges available to Scheduled Castes and Scheduled Tribes in the State to which he migrates,
such a denial would be in violation of Article 14 of the Constitution, in that, the right to equality and equal treatment would be denied, cannot be
sustained. For the very same reason, the challenge to the communications and circulars issued by the Government of India and the Government of
Maharashtra is without merit. It is, therefore, contended by the deponent that there is no merit in this petition and the same should be dismissed.
10. Unfortunately, even though the main challenge is to the communications/circulars issued by the Government of India, no counter has been filed
on behalf of the Union of India even though considerable time has elapsed since the issuance of notice on August 17, 1990. Even on February 12,
1991, the learned Counsel for the Union of India reported that he had not been able to obtain instruction from the concerned Ministry as to the
stand that the Union of India may like to take on the question raised in this petition. On that occasion, we stated that we consider it necessary that
the Union of India should clarify its stand so that the Court may receive assistance from the learned Counsel representing the Union of India to
enable it to effectively resolve the issue. Reluctantly, this Court extended the time by another two weeks to enable it to do so. The Secretary to the
Ministry of Welfare was also directed to take appropriate steps to ensure the filing of a counter clarifying the stand of the Union of India before the
next date of hearing, namely, March, 5, 1991. A copy of the order was sent to the Secretary to enable him to pursue the matter and ensure that
the counter affidavit was filed before the next date. Unfortunately, despite the indulgence given by this Court, no counter affidavit has been filed on
behalf of the Union of India. What a sorry state of affairs that even after the highest officer in the Ministry is sounded the lethargy continues. So we
have to decide the issue without a counter from the Central Government.
11. The petition came up for final disposal before a Bench of three learned Judges of this Court on March 12, 1991. Having heard arguments for
three days, the learning Judges passed the following order on March 15, 1991:
We have heard these matters at some length but we have come to the conclusion that the problem raised in these petitions is likely to affect various
Fundamental issues regarding the recognition of Scheduled Castes and Scheduled Tribes under Articles 341 and 342 of the Constitution, read with
Presidential Orders in this context. In our opinion, these are appropriate matters to be placed before a Constitution Bench of this Court. The
papers may be placed before the Chief Justice for necessary directions in this behalf.
That is how the matter came up for final disposal before us.
12. We may incidentally mention that an interim application No. 1 of 1990 was taken out for permission to proceed in a representative capacity.
An order was passed on that application on August 17, 1990 directing notice to issue returnable on October 3, 1990.
13. It is a matter of common knowledge that before and during the British Rule also the social order in India was of graded inequality. During the
freedom struggle some of our leaders strived to bring about social integration to give a fillip to the independence movement. The need to bring
about equality was strongly felt. After independence when the Constitution was being framed for free India, considerable emphasis was laid on the
need to secure equality. The debates of the constituent Assembly bear testimony to this felt need. The Preamble of our Constitution, which is aptly
described as the conscience of our Constitution, promises to secure to all citizens ''equality of status and of opportunity''. In the Chapter on
Fundamental Rights, Article 14 emphatically states that the State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India. But then the Constitution Makers were also aware of the prevailing inequality in the Social structure of the country
and, therefore, felt the need to correct this imbalance through appropriate provisions. While Article 15(1) in unmistakable terms provides that the
State shall not discriminate against any citizen on grounds only of religion, caste race, sex, place of birth or any of them, Article 15(4) says that
nothing in the foregoing paragraph of the said Article shall prevent the State from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. So also Article 16(1) posits that there shall
be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and Clause (2) thereof
adds that no citizens shall, on grounds of religion, race, caste, sex descent or place of birth, residence or any of them, be ineligible for or
discriminated against in respect of any employment or office under the State. But then Clause (4) of Article 16 provides that nothing in the
foregoing part of the Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not adequately represented in services under the State. Article 19, insofar as
relevant for the purposes of this petition, states that all citizens shall have the right to move freely throughout the territory of India and to reside and
settled in any part of the territory of India. The submission of the learned Counsel for the petitioner was that since Article 19 confers a right of free
movement throughout the territory of India and a right to reside and settle in any part of the territory of India, persons belonging to the Scheduled
Castes and Scheduled Tribes have a right to move from one State to another without hindrance and to reside and settled in any other State. There
can be no doubt that this is a fundamental right and members belonging to the Scheduled Castes/Scheduled Tribes specified in one State have a
right to free movement to another State and to reside and settle in the other State if they so desire. As stated earlier certain privileges have been
conferred on members belonging to the Scheduled Castes and Scheduled Tribes in Part XVI of the Constitution, namely, Articles 330, 332, 335
and 336 which we have referred to earlier. But as pointed out earlier on a plain reading of Clause (1) of both Articles 341 and 342, extracted
earlier, it becomes obvious that the power of the President is limited to specifying the castes/tribes which shall, ''for the purposes of Constitution'',
be deemed to be scheduled Castes or Scheduled Tribes ''in relation to a State or a Union Territory'', as the case may be. The contention of the
learned Counsel for the petitioners was that the legal position explained in the communication of the March 22, 1977 and subsequent
communications flowing therefrom and referred to earlier was not consistent with the language of Articles 341(1) and 342(2) and was even
otherwise violative of the concept of equality enshrined in Articles 14, 15, 16 and 19 of the Constitution. The learned Counsel further pointed out
that the decisions of the Bombay High Court referred to in the earlier part of this judgment and the decisions of the Gujarat High Court in 704651
and 710903 as well as the decision of the Karnataka High Court in P.M. Muni v. Karnataka Public Service Commission (1981) LAB IC 1345
should be approved as they have rightly held that the words ''for the purposes of this Constitution'' Should not be read as subservient to the words
''in relation to that State''. If so interpreted the view expressed by the Government of India in the communication dated March 22, 1977 would be
wholly erroneous and in violation of the fundamental rights referred to earlier. He, therefore, contended that since the Maharashtra Government
order of March 21, 1979 follows the interpretation placed by the Government of India in the communication of March 22, 1977, the former must
also be held to suffer on the same vice of constitutional invalidity and opposed to the spirit and purpose of Articles 341(1) and 342(1), On the
other hand the learned Counsel for the Union of India, though handicapped for want of a counter, and the learned Counsel for the State of
Maharashtra placed strong reliance on the Constitution Bench decision in Marri Chandra and submitted that these very submissions were
canvassed before the Constitution Bench by Mr. Raju Ramachandran, and were spurned. If we agree with the submission of the learned Counsel
for the respondents that the point at issue in this petition stands covered by the decision of the Constitution Bench in the aforesaid case nothing
further would remain for us to decide. It would, therefore, be advantageous to straightaway refer to the decision in Marri Chandra''s case.
14. Marri Chandra was born in Tenali in the State of Andhra Pradesh and belonging to Gouda community, popularly known as ''Goudi''. This
community was specified as a Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950 as amended till then. His father had obtained a
Scheduled Tribe certificate from the Tehsildar on the basis whereof he secured employment in the quota reserved for Scheduled Tribes in a
Government of India Undertaking and was posted in Bombay, State of Maharashtra. The petitioner was then aged about 9 years. He persecuted
his studies in Bombay and passed the 12th standard examination held by the Maharashtra State Secondary and Higher Secondary Examination
Board. Thereafter he sought admission to the respondent-college claiming benefit of reservation as one belonging to the Scheduled Tribe. He was,
however, denied admission in that quota though Scheduled Tribe candidates who had secured lesser marks than him but whose State of origin was
Maharashtra were admitted. The denial of admission was based on the circular dated February 22, 1985 issued by the Government of India which
has already been referred to by us. Having failed to secure admission in any medical college in the quota reserved for Scheduled Tribe candidates,
he questioned the denial before this Court under Article 32 of the Constitution. A Constitution Bench headed by Sabyasachi Mukharji, C.J., as he
then was, examined the question whether one who is recognised as a Scheduled Tribe in the State of his origin continues to have the benefits or
privilege or rights in the State to which he migrates. In paragraph 6 of the Judgment the precise question was formulated as follows:
The question, therefore, that arises in this case, is whether the petitioner can claim the benefit of being a Scheduled Tribe in the State of
Maharashtra though he had, as he states, a Scheduled Caste certificate in the State of Andhra Pradesh?
In answering this question the Constitution Bench was called upon to interpret Articles 341 and 342 of the Constitution and determine what the
expression ''in relation to that State'' read in conjunction with ''for the purposes of this Constitution'' seeks to convey. After referring to the
provisions of Articles 14, 15 and 16 and the decision of this Court in 278964 the Constitution Bench took notice of the fact that Scheduled Castes
and Scheduled Tribes had to suffer social disadvantages and were denied facilities for development and growth in certain states. To grant equality
in those States where they suffered and were denied facilities for development and growth certain protective preferences, facilities and benefits in
the form reservation, etc., had to be provided to them to enable them to compete on equal terms with the more advantageous and developed
sections of the community. It is not necessary to dilate on this point as the Constitution itself recognises that members belonging to the Scheduled
Castes and Scheduled Tribes and other backward classes have to be given certain incentives, preferences and benefits to put them on an even keel
with others who have hitherto enjoyed a major share of the facilities for development and growth offered by the State, so that the former may, in
course of time, be able to overcome the handicap caused on account of denial of opportunities. The interpretation that the Court must put on the
relevant constitutional provisions in regard to Scheduled Castes/Schedule Tribes and other backward classes must be aimed at achieving the
objective of equality promised to all citizens by the Preamble of our Constitution. At the same time it must also be realised that. The language of
Clause (1) of both the Articles 341 and 342 is quite plain and unambiguous. It clearly states that the President may specify the castes or tribes, as
the case may be, in relation each State or Union Territory for the purposes of the Constitution. It must also be realised that 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, when a
class is specified by the President, after consulting the Governor of State A, 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. True it is that this
specification is not only in relation to a given State whose Governor has been consulted but is ''for the purposes of this Constitution'' meaning
thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. The Constitution Bench has, after referring
to the debates in the Constituent Assembly relating to these Articles, observed that while it is true that a person does not cease to belong to his
caste/tribe by migration he has a better and more socially free and liberal atmosphere and if sufficiently long time is spent in socially advanced
areas, the inhibitions and handicaps suffered by belonging to-a specially disadvantageous community do not truncate his growth and the natural
talents of an individual gets full scope to blossom and flourish. Realising that these are problems of social adjustment it was observed that they must
be so balanced in the mosaic of the country''s integrity that no section or community should cause detriment or discontentment to the other
community. Therefore, said the Constitution Bench, the Scheduled Cases and Scheduled Tribes belonging to a particular area of the country must
be given protection so long as and to the extent they are entitled to in order to become equals with others but those who go to other areas should
ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. The
Constitution Bench summed up as under:
In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other
communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the Instant case, do require protection in the State of
Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic in
mind, then the determination of the controversy in the instant case does not become difficult.
15. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes
or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or
class in that State which may be totally non-est in another State to which persons belonging thereto may migrate. Coincidentally 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 input 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''. This is an aspect which has to be kept in mind and
which was very much in the minds of the Constitution makers as is evident from the choice of language of Articles 341 and 342 of the Constitution.
That is why in answer to a question by Mr. Jaipal Singh, Dr. Ambedkar answered as under:
He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the
territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local government, within whose
jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal
area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would
certainly be able to give some answer to the question in the form of some clause in his Constitution. But so far as the present Constitution stands, a
member of a Scheduled Tribe going outside the Scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he
is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions
that apply to tribal areas or scheduled areas, in areas other than those which are covered by them....
Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he
belonged to a Scheduled Tribe in the State of his origin.
16. Lastly the Constitution Bench referred to the cleavage in the views of different High Courts on the interpretation of Articles 341 and 342 of the
Constitution and the consequential orders passed by the Government of India and the State Governments. It referred to the two decisions of the
Gujarat High Court as well as the decision of the Karnataka High Court which place the interpretation canvassed before us by Mr. Raju
Ramachandran. The other side referred to the decisions of the Orissa High Court in K. Appa Rao v. The Director of Posts and Telegraphs, Orissa
AIR (1969) Ori 220 the decision of the Full Bench of the Bombay High Court in 448112 and the decision of the Punjab & Haryana High Court in
V.B. Singh v. State of Punjab ILR [1976] 1 P & H 769 which take the contrary view canvassed before us by the respondents. All these decisions
were considered by the Constitution Bench which agreed with the latter view. It upheld the view expressed in the communication dated February
22, 1985 and negatived the challenge of the petitioner that the said view was ultra vires Articles 14, 15, 16 or 21. It, however, observed that in the
facts and circumstances of the case and having regard to the fact that the petitioner student''s career was involved it directed the authorities to
consider whether the petitioner was a ''Goudi'' and if yes, the institution may consider if he can be allowed to complete his studies in the institution.
However, on the interpretation of the relevant provisions of the Constitution this Court was clear in its view that legally speaking he was not entitled
to admission in the Scheduled Tribe quota.
17. We are in respectful agreement with the above view expressed by the Constitution Bench in the aforesaid decision. All the points which were
canvassed before us by Mr. Raju Ramchandran were also canvassed by him in the said matter. They were negatived by the Constitution Bench.
Nothing has been pointed out to persuade us to think that the view taken by the Constitution Bench requires reconsideration by a larger Bench. In
fact we are in complete agreement with the interpretation placed on the various provisions of the Constitution, in particular Articles 341 and 342
thereof, in the said judgment. We, therefore, see no merit in this writ petition and dismiss the same. However, we make no order to costs.
