Judgment

SABYASACHI MUKHARJI

( 1 ) THE issues involved in this writ petition under Article 32 of the Constitution are of seminal importance for the country and the people. The principles which should be applicable in governing the problem are indisputable. Their application, however, presents certain amount of anxiety.

( 2 ) THE petitioner, a citizen of India, was born on 6/10/1969 in Tenali in the State of Andhra Pradesh. He belongs to the Gouda community also know as "goudu", it is stated in the petition. This community is recognised as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, as amended up to date. We are not concerned with the correctness or otherwise of the factual position on this aspect in this application. The father of the petitioner had been issued a Scheduled Tribe certificate by the Tahsildar, Tenali, Andhra Pradesh on 3/08/1977. On the basis of the said certificate, the father of the petitioner was appointed in the Fertilizer Corporation of India, a public sector undertaking, on 17/10/1977 in the Schedule Tribes quota. On 19/06/1978, the petitioners father joined the Rashtriya Chemicals and Fertilizers Ltd. , a Government of India undertaking, under the quota reserved for Scheduled Tribes and he has been stationed in Bombay since then. The petitioner, therefore, came to live in Bombay, in the State of Maharashtra, since the age of nine years. The petitioner completed the secondary and higher education in Bombay. In March 1989, the petitioner passed the 12th standard examination of the Maharashtra State Board of Secondary and Higher Secondary Examination, Bombay Divisional Board, securing 165 marks in the aggregate in Physics, Chemistry and Mathematics. For the academic year 1989-90, the petitioner submitted his application for three medical colleges in Bombay which are run by the Bombay Municipal Corporation (respondent 2 herein) and for one medical college in Bombay run by the State of Maharashtra (respondent 3. The total number of seats in the three medical colleges run by the Municipal Corporation for the MBBSCourse is 400 out of which 7 per cent i. e. 28 seats were reserved for Scheduled Tribes. The total number of seats in the medical college run by the State of Maharashtra is 200 out of which 7 per cent i. e. 14 seats are reserved for Scheduled Tribes. The petitioner sought and availed the benefit of the reservation in favour of the Scheduled Tribes. The petitioner was however not admitted to the MBBS course in the medical colleges run by the Bombay Municipal Corporation or the State of Maharashtra, though indubitably Scheduled Tribes candidates who had secured lesser marks than him had been admitted. The undisputed reason for denial of admission to the petitioner was that the petitioner was not entitled to Scheduled Tribe status of his origin, in which this community is specified as a Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950.

( 3 ) THERE is a circular dated 22/02/1985 issued by the government of India, Minister of Home Affairs which, inter alia, states:

"it is also clarified that a Scheduled Caste/tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment etc. will be deemed to be a Scheduled Caste/tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated. "

( 4 ) THE admission forms issued by the Municipal Corporation as well as government indicate the requirement of domicile of 15 years. The petitioner states that he has produced a domicile certificate indicating his stay in Maharashtra for over 10 years since 1978. This issue, however, is not before this court in this writ petition. This issue had not been raised before this court. In the counter-affidavit filed on behalf of the State of Maharashtra, the objection was on the interpretation of Article 342 of the Constitution and there was no contention rais