PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred the present writ petition claiming the following relief :- "It is, therefore, prayed that this writ petition may kindly be allowed and :- (i) by an appropriate writ, order or direction, the verbal refusal of the respondent Tehsildar Tibbi, District Hanumangarh from issuing the OBC caste certificate may kindly be declared illegal and arbitrary ; (ii) by an appropriate writ, order or direction, the respondent Tehsildar Tibbi, District Hanumangarh may kindly be directed to issue OBC caste certificate to the petitioner forthwith;"
(2.) The petitioner belongs to the State of Haryana and she falls in O.B.C. category. Her husband belongs to OBC category of State of Rajasthan. After marriage, the petitioner claims that as she undisputedly belongs to OBC category in State of Haryana and her husband also belongs to OBC category in State of Rajasthan, therefore, she deserves to be given OBC reservation in Rajasthan. 2.2 The broad question of law under consideration is as to whether any reserved category candidate of one State would be entitled for reservation in the same reserved category in another State on account of migration upon marriage, adoption, conversion etc.
(3.) Learned AAG while addressing the broad legal proposition submits that the Hon'ble Apex Court has repeatedly reiterated the law that a reserved category candidate would not be entitled for the same reservation once he/she migrates from his original State on count of marriage, adoption or conversion. Learned AAG has relied upon the judgment of Hon'ble Supreme Court in the case of Marri Chandra Shekhar Rao. vs. Dean, Seth G.S. Medical College and others, reported in (1990) 3 SCC 130, the relevant para 10 whereof reads as below :- "10. It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere. But if sufficiently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however, are 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. These must be so balanced in the mosaic of the country's integrity that no section or community should cause detriment or discontentment to other community or part of community or section. Scheduled Castes 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 in order to become equal with others. But equally 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 inabilities 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. This must be the basic approach to the problem. If one bears this basic approach in mind, then the determination of the controversy in the instant case does not become difficult. For the purpose of understanding the problem, it may be worthwhile to refer to the Report of the Joint Committee of the Parliament on the Scheduled Castes and Scheduled Tribes (Amendment) Order Bill, 1967. It may also be worthwhile to refer to the proceedings of the Con- stituent Assembly on the 17th September, 1949 dealing with Articles 303 and 304, which later on became Articles 341 and 342 respectively. Dr. B.R. Ambedkar moving the Resolution observed as follows: "That after article 300, the following articles be inserted: 300A.(1) The President may, after consultation with the Governor or Ruler of a State, by public notification specify the castes, races or tribes or parts of or groups within castes races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to the State. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 300B.(1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be scheduled tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of scheduled tribes specified in a notification issued by the President under clause (1) of this article any Tribe or Tribal community or part of or group within any Tribe or Tribal community but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President." 3.2 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and another, reported in (1994) 5 SCC 244, the relevant paras 16 and 17 whereof read as below :- "16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule 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 fights, 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 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....... 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. 17. 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. Director of Posts and Telegraphs, Orissa10, the decision of the Full Bench of the Bombay High Court in M.S. Malathi v. Commissioner, Nagpur Division" and the decision of the Punjab and Haryana High Court in V.B. Singh v. State of Punjab12 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 22- 2- 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." 3.3 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of Mrs. Valsamma Paul vs. Cochin University and others, reported in AIR 1996 SC 1011, the relevant para 34 whereof reads as below :- "34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu and R. Chandevarappa v. State of Karnataka , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4).Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have had same the handicaps, and must have been subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be. Acquisition of the Status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution." 3.4 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of Ranjana Kumari vs. State of Uttarakhand and Ors. (Civil Appeal No.8425/2013), which reads as below :- 1. We have heard the learned counsels for the parties and perused the relevant material. 2. The appellant who belongs to Valmiki caste (Scheduled Caste) of the State of Punjab married a person belonging to the Valmiki caste of Uttarakhand and migrated to that State. In the State of Uttarakhand under the Presidential Order 'Valmiki' is also recognized as a notified Scheduled Caste. The State of Uttarakhand issued a certificate to the appellant. 3. The appellant contended before the High Court that she was a Scheduled Caste of the State of Uttarakhand. The High Court having rejected the claim, the appellant is in appeal before us. 4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and Ors.1 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. vs. Union of India and Anr.2 have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench Judgments in Marri Chandra Shekhar Rao (supra) and Action Committee (supra). 5. We, therefore, find no error in the order of the High Court to justify any interference. The appeal is accordingly dismissed." 3.5 Learned AAG has further relied upon the judgment of Hon'ble Supreme Court in the case of Bir Singh. vs. Delhi Jal Board and others, reported in (2018) 10 SCC 312, the relevant paras 156, 157 and 158 whereof reads as below :- "156. Insofar as the States, I agree with the majority view that a person who is recognised as a member of Scheduled Castes/Scheduled Tribes in his original State, will be entitled to all the benefits of reservation under the Constitution in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory. 157. Marri Chandra Shekhar Rao and Action Committee are applicable to the States and they are applicable with equal force to the Union Territories including Union Territory of Delhi. There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories. When Presidential Orders of Scheduled Castes/Scheduled Tribes are notified for various Union Territories including Union Territory of Delhi extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme and the law laid down in Marri Chandra Shekhar Rao and Action Committee. 158. Since there is centralised recruitment upto Group 'B' (Gazetted) services conducted by UPSC for the Central Civil Services posts in the States/Union Territories of India, there has to be necessarily PAN India reservation for Scheduled Castes/Scheduled Tribes for those recruitment conducted by UPSC. Sofaras Group 'B' and Group 'C' posts falling under services of Union Territories including Union Territory of Delhi for which recruitment is conducted by the respective Union Territories, benefit of reservation in employment (Article 16(4)) is to be extended only to those Scheduled Castes/Scheduled Tribes specified in the Presidential Order of the respective Union Territories. Insofar as the posts recruited by the Staff Selection Board of the respective Union Territories including the Union Territory of Delhi, there cannot be PAN India reservation for Group 'B', Group 'C' and Group 'D' posts falling under the services of various Union Territories and such PAN India reservation would be against the constitutional scheme and Marri Chandra Shekhar Rao and Action Committee." 3.6 Learned AAG has further relied upon the judgment of this Court in the case of Avinash Daulatram Majshram (Dr.) vs. State and Anr, reported in RLW 2010 (2) Raj. 1554., wherein this Court has dismissed the writ petition of the petitioner therein, relying upon the aforesaid precedent law in the case of Marri Chandra Shekhar Rao (supra). 3.7 Learned AAG thus submits that looking into the jurisprudence laid down by the Hon'ble Supreme Court, no room is left for the petitioner for any type of consideration on account of having the status of backward class as admittedly, she has migrated from another State. ;