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1986 Supreme(Guj) 12
Gujarat High Court
Judgename :A.P.RAVANI
Ghanshyam - Appellant
Versus
L.D.Engineering College - Respondent
S.C.A. 6903 of 1985
Decided On : 01/21/1986
Headnote:
Constitution of India , 1950 - Article 15 (4), 46, 226 ,341 and 342 - Petitioner was, in the course of his service transferred from to sometime in the year- His son named has passed the qualifying examination i. e. XII Std HSC examination by Secondary Education Board - It is also an undisputed fact that petitioners son has secured 267 marks out of 450 marks - For purpose of consideration of merits in medical and engineering colleges in the State - His application was also supported by a certificate issued by appropriate officer, i. e. District Backward Class Welfare Officer who certified that of belongs to tribe which is recognised as ST - Authorities processing application forms for admission to the B. E. course, felt that tribe to which student belongs was not recognised as ST in relation to the State of and therefore he was not entitled to claim the seat as ST candidate - Petitioners son being minor, petitioner as father and guardian of the student has challenged legality and validity of this decision of the respondent authorities and has invoked the jurisdiction of this High Court - Respondents-authorities have not disputed fact that student belongs to halba community which is recognised as ST in relation to State – Respondents authorities have also not disputed the eligibility of student concerned - Only ground on which the claim of the student to secure the benefit of reserved seat for ST is denied is that he originally belonged to State and community to which he belongs is recognised as ST in relation to State of and not in relation to the State of Gujarat –Held, - On ground that they have migrated from the State of and that they do not belong to that particular State - If this is so, it is really a sorry state of affairs - Instead of following the wrong course adopted by other State authorities, the State of Gujarat should have taken up the issue with the Central Government and got point clarified - Now, it is hoped that Central Government would immediately take appropriate steps and shall clarify the position in the light of discussion and observations made hereinabove - They are also governed by the same law prevailing in country - Only difference is that for injustice from which they are suffering for the last thousands of years, the framers of Constitution and we the people of India have decided rather pledged ourselves to uplift and ameliorate their lot - That is reason why provision is made which occurs in the Chapter relating to Fundamental Rights - This path is adopted by the nation with a view to avoid violent upheavals and see that the socio-economic structure of the society is transformed smoothly - Viewed in this context it is right of SC/st candidates to claim preferred treatment - They claim their constitutional right to equality of status and of opportunity and economic and social justice. Several bridges have to be erected, so that they may cross the Simply because constitutional protection is extended to them they cannot be treated differently than the other citizens of country -They cannot be asked to surrender their fundamental rights if they wish to avail of the benefits of constitutional protection extended to them - There is no reason to adopt one standard in respect of members belonging to SC/st and other weaker Sections of the society on one hand and another standard in respect of members belonging to upper castes or unreserved Section of society on other hand - Petition allowed
( 1 ) THE petitioner is serving as Executive Engineer in the Post and Telegraphs Department of the Union of India. He originally belonged to State of Maharashtra in relation to which his caste/community, i. e. Halba, has been recognised as Scheduled Tribe (ST ). There is no dispute with regard to the fact that Halba caste/community has been recognised as ST in relation to the State of Maharashtra since the year 1956, if not earlier. While the petitioner was serving at Bombay, his daughter got admission in medical course on reserved seats for ST candidates. The petitioner was, in the course of his service transferred from Bombay to Ahmedabad sometime in the year 1978. His son named Vinay kumar G. Borikar, has passed the qualifying examination i. e. XII Std. HSC examination, held by the Gujarat Secondary Education Board, Gandhinagar. It is also an undisputed fact that the petitioners son has secured 267 marks out of 450 marks. For the purpose of consideration of merits in medical and engineering colleges in the State, total of 450 marks of Maths, (I and II) Physics, Biology and Chemistry are being taken into account. The minimum required marks for the students belonging to SC, ST and other backward classes are 202 out of 450.
( 2 ) THE petitioners son applied for being admitted to 1st year B. E. course within the prescribed time limit. His application was also supported by a certificate issued by the appropriate officer, i. e. District Backward Class Welfare Officer, Ahmedabad-Gandhinagar, who certified that Vinay Borikar (the student) of Nagpur (Maharashtra) belongs to Halba tribe which is recognised as ST. The authorities processing the application forms for admission to the B. E. course, felt that Halba tribe to which the student belongs was not recognised as ST in relation to the State of Gujarat and therefore he was not entitled to claim the seat as ST candidate. The petitioners son being minor, the petitioner, as father and guardian of the student, has challenged the legality and validity of this decision of the respondent authorities and has invoked the jurisdiction of this High Court under Art. 226 of the Constitution.
( 3 ) THE respondents-authorities have not disputed the fact that the student belongs to halba community which is recognised as ST in relation to the State of Maharashtra. The respondents-authorities have also not disputed the eligibility of the student concerned. The only ground on which the claim of the student to secure the benefit of reserved seat for ST is denied, is that he originally belonged to Maharashtra State and the community to which he belongs, i. e. Halba, is recognised as ST in relation to the State of Maharashtra and not in relation to the State of Gujarat.
( 4 ) IN support of the aforesaid stand, the respondents-authorities have relied upon the guideline issued by the Central Government in its letter dt. April 2, 1975. The relevant part of the guideline which has been relied upon reads as follows :-"2. Cases of Migration (i) xxx xxx xxx xxx (ii) 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 to which he originally belonged and not in respect of the State to which he has migrated. "
( 5 ) THE aforesaid guideline is interpreted so as to mean that a person belonging to a particular State, say Maharashtra, in relation to which his caste/tribe is recognised as SC/st can claim the benefit of constitutional protection extended to SC/st only if he claims such benefit within the State of Maharashtra. If such a person migrates to another State, he cannot claim such benefit in any other State. The guideline is not happily worded and if the guideline is understood in the aforesaid manner, as is sought to be understood by the respondents-authorities, the guideline would be violative of the provisions of the Constitution and will be ineffective.
( 6 ) THE aforesaid guideline came up for con
