Prashant Kumar Vs State of Chhattisgarh

10.2. That, this Hon’ble Court may kindly issue a writ in the nature of Mandamus directing the respondent authority to issue Permanent Social Status Certificate (Caste Certificate) to the Petitioner, prescribed period granted under Rule 9 & 10 of the Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certification) Rules, 2013.”

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Learned counsel for petitioner submits that on 14.12.2020 when petitioner applied online for issuance of caste certificate of Scheduled Caste in favour of his children, respondent No.3 rejected that application on 27.1.2021 on the ground that petitioner hails from District Balaghat of State of Madhya Pradesh. Aggrieved with such denial, petitioner preferred an appeal under Section 5 of the Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certification) Act, 2013 (for short ‘the Act of 2013’), which came to be dismissed on 17.5.2022. He contended that forefathers of petitioner were residents of undivided State of Madhya Pradesh of Balaghat district. Petitioner’s father was appointed in Bhilai Steel Plant, Bhilai in the year 1979, which is now falling in the State of Chhattisgarh, and retired from service in the year 2011. Petitioner is having a caste certificate dated 12.7.1996 issued by Additional Tahsildar, Durg that he belongs to ‘Mahar’ caste which falls under the category of scheduled caste. This

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certificate has not been cancelled by any authority and in such circumstance, there was no justification on the part of respondent No.3 to refuse caste certificate of Scheduled Castes to petitioner’s children. Referring to Notification dated 10.10.2022 (Annexure P-12), he submits that the spouse and children of an employee of the institution of the Central Government in the area of Chhattisgarh State would be permanent resident of the State of Chhattisgarh. As the petitioner’s father was employee of the institution of Central Government situated in the area of State of Chhattisgarh and retired as such in the year 2011, petitioner has attained the status of permanent resident of the State of Chhattisgarh and is entitled to get all benefits including the caste status. He also drawn attention of this Court towards Section 12 of the Act of 2013 wherein it is provided that government employees of undivided Madhya Pradesh and their family members shall be deemed to have been migrated involuntary from the State of Madhya Pradesh to the State of Chhattisgarh and if they belong to Scheduled Castes or Scheduled Tribes or Other Backward Classes in the parent State, they shall be issued certificate and shall be given benefits of reservation in the migrated State of Chhattisgarh. He submits that in the given fact situation and in view of clear and unambiguous language used in Rule 12 of the Rules of 2013, rejection of application

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for grant of caste certificate is not sustainable in the eyes of law. In support of his submissions, he places reliance upon the decision in the matter of Pankaj Kumar vs. The State of Jharkhand reported in 2021 SCC (online) SC 616.

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On the other hand, learned State counsel opposing submissions of learned counsel for petitioner, raises a preliminary objection with regard to maintainability of writ petition on the ground of availability of efficacious alternate remedy of challenging the order impugned before the Commissioner, Durg Division, Durg, as per circular of the State Government dated 19.7.2012. Instead of availing that remedy, petitioner straightaway rushed to this Court. He further submits that according to documents submitted by petitioner along with application for issuance of caste certificate, father of petitioner was not original resident of territory of Chhattisgarh, but he originally belong to village Bhaurgarh, Tahsil Kahilanji, District Balaghat (Madhya Pradesh) and therefore, the authority concerned has rightly rejected application of petitioner for grant of social status certificate of Mahar caste (Scheduled Caste).

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I have heard learned counsel for respective parties and perused the documents available in record of writ petition.

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From the pleadings in writ petition as well submissions made by learned counsel for petitioner, it emerges that petitioner

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submitted an application before the competent authority for issuance of caste certificate of scheduled caste in favour of his children. Along with application, petitioner annexed school transfer certificate of his father and grandfather. As per school leaving certificate of petitioner’s grandfather, he studied in Government Primary School Bhorgarh, District Balaghat from 29.3.1940 to 30.5.1944 and caste of petitioner’s grandfather in this document is mentioned as ‘Mahar’. The Competent Authority rejected application of petitioner on the ground that petitioner’s failed to produce document showing that his ancestors were residing in the territory of State of Chhattisgarh since prior to 1950.

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Claim of petitioner is that his father was an employee of undivided State of Madhya Pradesh, who retired in the year 2011 while serving in State of Chhattisgarh, and as such, case of petitioner would be one of “involuntary migration’ due to employment of his father in State of Chhattisgarh from prior to reorganization of State of Madhya Pradesh. According to Rule 12 of the Rules 2013, an employee who has been involuntary migrated to the State of Chhattisgarh would be entitled for the benefit of reservation in State of Chhattisgarh.

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Thus, the question which arises for consideration is “whether status of petitioner's father is of 'involuntary migrant' or not?”

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Section 70 of the Madhya Pradesh Reorganization Act, 2000 envisages that every person who, immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the existing State of Madhya Pradesh in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on any from that day, to have been duly appointed to the post or office by the Government of, or any other Appropriate Authority in, that successor State. This provisions talks of the employee discharging duties on any post in connection with the State affairs i.e. in service of the State government. In case at hand, father of petitioner was not in service of the State Government. Section 70 applies only to the State Government employees and not to other employees working with Public Sector or Central Government.

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The procedure to obtain caste certificate is prescribed in the Chhattisgarh Scheduled Castes, Scheduled Tribes and Other Backward Classes (Regulation of Social Status Certification) Rules, 2013 (for short ‘the Rules of 2013’). Rule 3 provides for making of an application in Form-1A to the competent authority for issuance of certificate. Rule 3 (3) prescribes the documents to be submitted along with application. One of the documents required to be annexed along with application is

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document verifying that ancestors of applicant were residing in the geographical limits of the State of Chhattisgarh on or before the Date of Presidential Notifications or Notification Date relating to Other Backward, Class as the case may be. Rule 3 also talks of the cases where applicant is an officer/ employee of State Government and allocated to Chhattisgarh State Cadre after reorganization of State of Madhya Pradesh, or their children, in compliance, of Section 67 of the Madhya Pradesh Reorganization Act, 2000.

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Section 67 of the Act of 2000 is extracted below for ready

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reference:-

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“67. Provisions relating to All-India Services. (1) In this section, the expression "State Cadre"-

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(a) in relation to the Indian Administrative Service, has the meaning assigned to it in the Indian Administrative Service (Cadre) Rules, 1954;

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(b) in relation to the Indian Police Service, has the meaning assigned to it in the Indian Police Service (Cadre) Rules 1954;

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(c)in relation to the Indian Forest Service, has the meaning assigned to it in the Indian Forest Service (Cadre) Rules, 1966.

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(2)In place of the cadres of the Indian Administrative Service, Indian Police Service and Indian Forest Service for the existing State of Madhya Pradesh, there shall, on and from the appointed day, be two separate cadres, one for the State of Madhya Pradesh and the other for the State of Chhattisgarh in respect of each of these services.

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(3)The initial strength and composition of the State cadres referred to in sub-section (2) shall be such as the Central Government may, by order, determine before the appointed day.

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(4)The members of each of the said service borne on the Madhya Pradesh cadre thereof immediately before the appointed day shall be allocated to the State cadres of the same service constituted under sub-section (2) in such manner and with effect from such date or dates as the Central Government may, by order, specify.

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(5)Nothing in this section shall be deemed to affect the operation, on or after the appointed day, of the All-India Service Act, 1951 (61 of 1951), or the rules made thereunder.”

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Rule 12 of the Rules 2013 deals with “involuntary migration”, which is extracted below for ready reference:-

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“12.Involuntary Migration. Government employees of undivided Madhya Pradesh and such other officers and employees of Corporation, Commission, Board and Public Undertakings, who have been allocated to the State of Chhattisgarh due to division of cadres between State of Madhya Pradesh and State of Chhattisgarh under Madhya Pradesh Reorganization Act, 2000 (No. 28 of 2000) such employee and his family members, if they belong to Scheduled Castes or Scheduled Tribes or Other Backward Classes in the State of Chhattisgarh shall be deemed to have been migrated involuntary from the State of Madhya Pradesh to the State of Chhattisgarh and they shall be

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issued Certificate and shall be given benefits of reservation in the State of Chhattisgarh.”

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A bare reading of Rule 12 quoted above, makes it clear that due to division of cadres, upon bifurcation, between the State of Chhattisgarh and State of Madhya Pradesh, a government employee of undivided State of Madhya Pradesh who has been allocated to the State of Chhattisgarh, and his family members, if they belong to Scheduled Castes or Scheduled Tribes or Other Backward Classes in the State of Chhattisgarh shall be deemed to have been migrated involuntary from the State of Madhya Pradesh to the State of Chhattisgarh and they shall be issued Certificate and shall be given benefits of reservation in the State of Chhattisgarh. The benefit under Rule 12 is given to the employees who by virtue of reorganization of State, due to allocation of cadre in successor State, is residing there.

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In case at hand, it is specific case of the petitioner that his father came to Bhilai, part of erstwhile State of Madhya Pradesh, and joined service in Bhilai Steel Plant in the year 1979 and thereafter retired in the year 2011 on attaining age of superannuation. It is not the case of petitioner that services of petitioner’s father were allocated to State of Chhattisgarh pursuant to formation of the State of Chhattisgarh as per M.P. State Reorganization Act, 2000 as a result, petitioner’s father had to migrate involuntary to the State of Chhattisgarh.

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Petitioner's father was never compelled or forced by any service condition to migrate and join his service in Bhilai. In fact, the petitioner’s father relocated/shifted himself from one region of undivided State of Madhya Pradesh to another for purpose of employment. Hence, in the considered opinion of this Court, petitioner’s father cannot be treated as an employee falling within the category of persons who would fall under ‘involuntary migration’ because services of petitioner’s father were not allocated to State of Chhattisgarh pursuant to formation of the State of Chhattisgarh as per M.P. State Reorganization Act, 2000 which had forced him to migrate involuntary to the State of Chhattisgarh. Therefore, the petitioner is not entitled to contend that he is eligible for issuance of caste certificate under Rule 12 of the Rules of 2013 being family member of an employee involuntarily migrated because movement of his father was not involuntary.

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In case of Marri Chandra v. Dean, S.G.S. Medical College, reported in (1990) 3 SCC130 , Hon’ble Supreme Court while considering the issue with regard to issuance of caste certificate to migrants and benefits to them, observed thus:-

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“2...... The father of the petitioner had been issued a Scheduled Tribe Certificate by the Tahsildar, Tenali, Andhra Pradesh on 3rd August, 1977. On the basis of the said certificate, the father of the petitioner was appointed in the Fertilizer Corporation of India, a

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public sector undertaking, on 17th October, 1977 in the Scheduled Tribes quota. On the 19th June, 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 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 his 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 No. 2 herein) and for one medical college in Bombay run by the State of Maharashtra (respondent No. 3). The total number of seats in the three medical colleges run by the Municipal Corporation for the MBBS Course is 400 out of which 7% 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% i.e. 14 seats are re- served 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

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Corporation or the State of Maharashtra, though indubitably Scheduled Tribes candidates who had secured lesser marks than him had been admitted........”

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21.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 ("Safeguards for Scheduled Caste and TribesFounding Father's view" by H.S. Saksena, at p. 60) which are to the following effect:

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"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 o/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

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a tribal area. So far as I can see, it will be practically impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them ..... "

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22.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.”

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Recently, a Full Bench of Bombay High Court in the matter of Kumari Shweta Shantalal Lal v. State of Maharashtra reported in 2010 (2) Mh.L.J. 904 after considering all the earlier verdicts of Hon'ble Supreme Court on the issue, has held thus:-

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“26.Having said so, we may now answer the Reference. In case of a migrant belonging to a Scheduled Caste, not ordinarily resident as on 10.3.1950 in the area that now constitutes the State of Maharashtra and in a case of S.T., considering Rule 5, on 6.9.1950, would not be entitled to benefits of reservation as S.C./S.T. in the State of Maharashtra. They and their progeny will continue to get the benefits of reservation in the State of origin. Reference answered accordingly.”

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In case of Subhash Chandra and another vs Delhi Subordinate Services Selection Board and others, reported in (2009) 15 SCC 458, Hon’ble Supreme Court observed thus:-

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“29. Concededly, in respect of education or service, there exists a distinction between State Services and State-run institutions included the Union Territory Services and Union Territory-run institutions on the

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one hand, and the Central Civil Services and the institutions run by the Central Government on the other. Whereas in the case of the former, the reservation whether for admission or appointment in an institution and employment or appointment in the services or posts in a State or Union Territory must confine to the members of the Scheduled Castes and Scheduled Tribes as notified in the Presidential Orders but in respect of All India Services, Central Civil Services or admission to an institution run and founded by the Central Government, the members of the Scheduled Castes and Scheduled Tribes and other reserved category candidates irrespective of their State for which they have been notified are entitled to the benefits thereof. It is not denied or disputed that service in the Union Territory is essential different from All India Services. It is also beyond any controversy that machinery for recruitment is also different. Indisputably again, not only the conditions of recruitment but also conditions of service differ.

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The question which was posed in Marri Chandra case¹ was the effect of specification by the President, of the Scheduled Castes or Scheduled Tribes, as the case may be, for the State or Union Territory or part of the State. Noticing that the specification was "for the purposes of this c Constitution", it was found to be necessary to determine what the expression "in relation to that State" seeks to convey. This Court noticed not only the various provisions of the Constitution but also the earlier decisions governing the field as well as the views of Dr. B.R. Ambedkar in

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the Constituent Assembly, to hold: (Marri Chandra Shekhar Rao case¹, SCC p. 147, para 22)

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"22. 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."

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From perusal of above quoted decisions, it is apparent that benefit of reservation can be availed of by a person only in the State to which he/she originally belonged and upon migration to some other State, one would not be entitled to benefits of reservation including privileges and benefits admissible to the member of reserved category in State Services of State to which he/she migrates.

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In WPC No.2205/2019 (Ku. Pooja Awsarmol vs State of CG & ors), decided on 21.10.2019, one of the reliefs claimed by petitioner therein under Relief Clause 10.2 was a direction to respondent competent caste certificate issuing authority SDO Durg to provide a permanent caste certificate of Scheduled Caste to petitioner, on the ground that her grandfather was appointed in Bhilai Steel Plant in the year 1964 and place of birth of petitioner is Bhilai, Chhattisgarh. In such a situation, the Division Bench of this Court, referring to decisions quoted above, has held thus:-

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“16.In view of above discussions made herein above and considering the provisions of the Rules of 2013 and further considering the caste certificate already issued to petitioner in Form 4C wherein permanent address of her father is shown as ‘village Fubgaon, District Amravati, Maharashtra”, we are of the opinion that the petitioner is not entitled for the relief as claimed in Para-10.2 of writ petition.”

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Considering the above quoted provisions of law; decision of Hon’ble Supreme Court and further considering that petitioner failed to produce any document to show that the his family was residing within territorial jurisdiction of the State of Chhattisgarh prior to the year 1950, particularly when his father does not fall within the category of person who would fall under “involuntary migrant’, I am of the considered view that the authority concerned has not committed any error in rejecting application of petitioner for issuance of caste certificate of scheduled caste to his children.

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So far as the decision in case of Pankaj Kumar (supra), which was relied upon by learned counsel for petitioner, is concerned, the same is of no help to petitioner being distinguishable on facts. From para-45 of the decision in Pankaj Kumar’s case (supra) it is clear that Hon’ble Supreme Court did not examine, the issue appertaining to involuntarily migration of members of Scheduled Castes/Scheduled

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Tribes/ OBC from State A to State B. In that case, petitioner therein was appointed as Assistant Teacher in the year 1999 and posted in a school in Ranchi, part of successor State, and after reorganization of State of Bihar, he opted for State of Jharkhand in cadre division and accordingly posted in State of Jharkhand. In the year 2008, he submitted application pursuant to advertisement issued by the Public Service Commission Jharkhand.

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Accordingly, the writ petition fails and is dismissed.

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Sd/- (Parth Prateem Sahu) Judge

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roshan/-

Prashant Kumar v. State of Chhattisgarh

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Prashant Kumar v. State of Chhattisgarh

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