SHARMA, J. - (1.) THIS order will dedde two Civil Writ Petition Nos. 4305/91 and 4306/91, by a common order as the same question of law is involved.
(2.) DR. Wangyal Dorjee, petitioner in Civil Writ Petition No. 4305/91 is resident of Gangtok, East Sikkim and belongs to the community of 'bhutia' which is recognised as Scheduled Tribe under the Constitution (Sikkim) Scheduled Tribe Order, 1978. There was no Medical College in the State of Sikkim. It is alleged that the Ministry of Health and Family Welfare, Government of India had reserved for Sikkim one seat in MBBS Course in RNT Medical College, Udaipur for academic session 1984-85. The petitioner was selected for award of Government Scholarship for admission in MBBS Course in RNT Medical College, Udaipur as against the seat reserved for the nominee of the Government of Sikkim. In pursuance of the selection and nomination, the petitioner was admitted in the MBBS Course in the academic session 1984-85 and he passed the final MBBS Examination from the University of Rajasthan, Jaipur and also completed his rotating intership of one year. According to the petitioner, he, being fully qualified and eligible to appear in Pre-PG Entrance Examination as a Scheduled Tribe candidate, submitted his application form to the Registrar, University of Rajasthan for Pre-PG Entrance Examination, 1991 for MD/ms/diploma Course. He passed the Pre-PG Entrance Examination, 1991 and his position in the merit list issued by the University of Rajasthan in the category of Scheduled Tribe candidates appeared at serial No. 5. It is stated that at the time of submission of application form for Pre-PG Entrance Examination, 1991, or at any time thereafter, no objection was raised as against the petitioner's candidature in the category of Scheduled Tribe. It is further said that the petitioner was also called for interview by the Post Graduate Admission Board and at that time he was orally informed that in view of the decision of the State Government, the petitioner was not eligible to be considered for allotment of specialities in the category of Scheduled Tribe candidate as the benefit of reservation of seats was only meant for Scheduled Tribe candidates of Rajasthan. This action of the respondents, the petitioner alleges, is against law and was in contravention of the provisions contained in Ordinance 278-E of the University Ordinances and is also violative of Article 14 of the Constitution of India. Similar is the case of Dr. Talung Tali, petitioner in Civil Writ Petition No. 4306/91. Dr. Talung Tali is resident of District East Siang in the State of Arunachal Pradesh. He alleges that he is a natural born scheduled tribe and belongs to the community of 'adi' tribe (Minyong) which is recognised as the Scheduled Tribe under the Constitution and (Scheduled Tribes Order 1950) as amended by the Scheduled Castes and Scheduled Tribes Lists (Modified Order), 1956 in the North Eastern Area (Regulation) Act, 1971. This petitioner was nominated by the Government of Arunachal Pradesh against one seat reserved in MBBS Course in S. P. Medical College, Bikaner for the academic session 1984-85. He was admitted in MBBS Course and passed the final MBBS Examination and also completed his rotating enternship of one year. He also appeared in Pre-PG Entrance Examination, 1991 and his position in the merit list of the category of Scheduled Tribe was at serial No. l. He was also refused admission on the same ground that he was not a Scheduled Tribe candidate of Rajasthan. Both of them have prayed that a writ, order or direction be issued against the respondents to consider the case of the petitioner for allotment specially in MD/ms Course as per their respective merits in the category of Scheduled Tribe candidates and they may further be directed to allow the petitioners to continue their studies in MD/ms Course. Both the writ petitions are opposed by the respondents. Respondents have filed reply in the writ petition of Dr. Talung Tali. The case of the respondents is that 8% seats after excluding the seats to be filled under as per the allocations by the Director General of Health Services, Government of India, New Delhi, as per clause (a) of Ordinance 278-E of the University Ordinances, reserved for natural born Scheduled Castes candidates and 6% for natural born Scheduled Tribes candidates belonging to the State of Rajasthan. This reservation, according to the respondents, meant for Scheduled Castes and Scheduled Tribes candidates of Rajasthan only. Respondents have referred to the provisions of Articles 341 & 342 of the Constitution of India and have also referred in their reply to the decision of their Lordships of the Supreme Court in Marri Chandra Shekhar Rao v. Dean, S. G. S. Medical College and others (1 ).
(3.) IT is quite clear that Ordinance 278-E framed by the University of Rajasthan, governs admissions to Post Graduate Medical Course in this State. This Ordinance will go to show that 25% of the total seats (irrespective of other reservations made thereunder) are filled in as per allocations made by the Director General of Health Services, Govt. of India, New Delhi on the basis of result of All India Competitive Examination for admission to PG Courses on open merit. 25% of the seats (after excluding the above reservation from the total seats) are reserved for in-service candidates of Rajasthan State Medical Service in various specialities as determined and fixed from time to time by the State Government. When there is reservation of 8% of resultant vacancies for natural born Scheduled Castes candidates and 6 % for natural born Scheduled Tribes candidates. Selection to these vacancies is made as per roster system to be notified by the State Government. The remaining seats are general seats. For seats other than the 25% reserved seats to be filled in on the basis of All India Competitive Entrance Examination, are filled in on the basis of the result of Pre-PG Entrance Examination conducted by the University of Rajasthan on the basis of merit- cum-preference. The only question for consideration in these writ petitions is, whether a candidate who belongs to Scheduled Tribe under the Constitution (Sikkim) Scheduled Tribe Order, 1978 and under the Scheduled Tribes Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes Lists (Modified Order) 1956, in the North Eastern Area (Regulation) Act, 1971, is eligible for admission to Post Graduate Course as against 6 % reservation made by an Ordinance 278 E of the University Ordinances for natural born Scheduled Tribes candidates. In order to decide this question, it is quite necessary to refer to the decision of their Lordships of the Supreme Court in Marri Chandra Shekhar Rao vs. Dean, S. G. S. Medical College and others (supra) which is a constitution Bench decision of the Supreme Court. The facts in Marri Chandra Shekhar's case were that the petitioner was born on October 6, 1969 in Tenali in the State of Andhra Pradesh. He belonged to the Gouda community also known as Goudu. This community was recognised as 'scheduled Tribe' in the Constitution (Scheduled Tribes) Order, 1950, as amended up to date. The father of the petitioner has been issued a Scheduled Tribe certificate by the Tehsildar, Tenali, Andhra Pradesh on August 3, 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 October 17, 1977 in the Scheduled Tribes quota. On June 19, 1978, the petitioner's father joined the Rashtriya Chemicals and Fertilizers Ltd. , a Government of India undertaking, under the quota reserved for Scheduled Tribes and he had 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 run by the Bombay Municipal Corporation and for one Medical College in Bombay run by the State of Maharashtra. The total number of seats in the three Medical Colleges run by the Municipal Corporation for MBBS Course was 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 was 200 out of which 7 per cent i. e. 14 seats were 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 either 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 indisputed 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. There was a circular dated Feb. 22, 1985 issued by the Government of India, Ministry of Home Affairs inter alia clarifying that the Scheduled Tribe persons who have 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. The question, therefore, arose before the Supreme Court, whether the petitioner can claim the benefit of being a Scheduled Tribe in the State of Maharashtra though he had a Scheduled Tribe Certificate in the State of Andhra Pradesh. His Lordship Sabyasachi Mukharji, CJ. , speaking for the Court, after referring to Articles 341 and 342 of the Constitution of India, observed as under :- "it is desirable to confine the controversy to the basic question, namely, whether one who is recognised as a Scheduled Tribe in the State of his origin and birth continues to have the benefits or privileges or rights in the State of migration or where he later goes. In this connection, the provisions of Articles 341 and 342 of the Constitution have been noticed. These articles enjoin that the President after consultation with the Governor where the States are concerned, by public notification, may specify the tribes or tribal communities or parts of or groups of tribes or tribal communities, which shall be deemed to be Scheduled Tribes in relation to that State under Article 341 or 342 in relation to that State or Union Territory. . . . . . . . It is, therefore, necessary to determine what the expression 'in relation to that state' in conjucntion with 'for the purposes of this Constitution' seeks to convey The social conditions of a caste varies from State and it will not be proper to generalise any tribe as a Scheduled Tribe or Scheduled Caste for the whole country. This, however, is a different problem whether a member of the Scheduled Caste in one part of the country who migrates to another State or any other Union Territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole The problems of social adjustment i. e. how far protection has to be given to a certain segment of socially disadvantaged community and for how long to become equal with others is a matter of delicate social adjustment. Those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. 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. . . When a Scheduled Castes or Tribes migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any specially rights or privileges attributed to him or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated State it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Neither Articles 14,16,19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates It appears to us that harmonious construction enjoins that we should give to each expression "in relation to that State" or "for the purposes of this Constitution" its full meaning and give their full effect. This must be so construed that one must not negate the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and Scheme of the Constitution. Otherwise, one has to bear in mind that if reservations to those who are treated as Scheduled Caste or Tribe in Andhra Pradesh are also given to a boy or a girl who migrates and gets deducted in the State of Maharashtra or other States where that caste or tribe is not treated as Scheduled Caste or Scheduled Tribe then either reservation will have the effect of depriving the percentage to the member of that caste or tribe in Maharashtra who would be entitled to protection or it would denude the other non-Scheduled Castes or non-Scheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution. Indeed, Mr. Raju Ramachandran is right that a holistic approach to the different provisions of the Constitution should be taken. Having regard, however, to the purpose and the Scheme of the Constitution which would be just and fair to the Scheduled Castes and Scheduled Tribes, not only of one State of origin but other States also where the Scheduled Castes or Tribes migrate in consonance with the rights of other castes or community, rights should be harmoniously balanced. Reservations should and must be adopted to advance the prospects of weaker sections of society, but while doing so care should be taken not to exclude the legitimate expectations of the other segments of the community. We have reached the aforesaid conclusion on the interpretation of the relevant provisions. In this connection, it may not be inappropriate to refer to the views of Dr. B. R. Ambedkar as to the prospects of the problem that might arise, who stated in the Constituent Assembly Debates in reply to the question which was raised by Mr. Jai Pal Singh which are to the following effect : - " 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 areas 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 this 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. . . " In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the Medical College on the basis of Scheduled Tribe certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admitted as being domicile does not fall for consideration. ;